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COMPENSATION  for 
INDUSTRIAL  ACCIDENTS 


CONFERENCE 
of  COMMISSIONS 

CHICAGO 
NOVEMBER,  1910 


PIJBJJSHED    BY 

AMOS  T.  SAUNDERS,  Secreianj 

CLINTON,    MA^SACHirSETTS 

FRIGE:   ONE  DOLLAR 


*  PROCEEDINGS 


OF 


CONFERENCE  of  COMMISSIONS 


ON 


Compensation  for  Industrial 
Accidents 

HELD  AT 
CHICAGO,  ILL.,  on  NOVEMBER  10,  11,  and  12,  1910 


PUBLISHED  BY 

AMOS  T.  SAUNDERS,  Secretary 

CLINTON,  MASSACHUSETTS 
PRICE,  ONE  DOLLAR 


««>f      •••■»*»i   "*■>->•»*  X 


BOSTON 

Geo.  H.  Ellis  Co.,  Printers,  272  Congress  Street 

1910 


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TABLE  OF  CONTENTS 


PAQK 


Commissions  Participating 3-4 

Organization 5 

Reports  of  Commissions 6-25 

Report  of  United  States  Commission 6 

Report  of  New  York  Commission 6-9 

Report  of  Ohio  Commission 9-11 

Report  of  Minnesota  Commission 11-13 

Report  of  Illinois  Commission 13-14 

Report  of  New  Jersey  Commission 14-16 

Report  of  Massachusetts  Commission 17-19 

Report  of  Connecticut  Delegate 19-22 

Statement  of  Ohio  Commission 22-25 

Statement  of  U.  S.  Commissioner  of  Labor 25 

Topics  of  Discussion: 

1.  What  Employments  shall  the  Act  cover? 31-37 

2.  Shall  All  Injuries  be  covered,  Irrespective  of  Negli- 

gence?     38-51 

3.  Shall  All  Persons  engaged  in  such  Employment  be  in- 

cluded?        51-56 

4.  Shall  Compensation  be  paid  in  a  Lump  Sum  or  in  In- 

stalments?      56-70 

5.  Amount  and  Duration  of  Compensation? 70-99 

6.  Length  of  Waiting  Period? 99-101 

7.  Shall  Dependants  include  Aliens  and  Illegitimate  Re- 

lations?   101-145 

8.  Shall  Employees  contribute  to  the  Fund  for  carrying 

this  Expense? 145-177 

9.  Shall  it  be  Permissible  for  Employers  to  substitute  Vol- 

untary Schemes? 177-180 

10.  Method  of  Determination  of  Controversies? 180-191 

11.  Nature  of  Scheme:  Compensation,  Insurance,  or  State 

Insurance;  (a)  Voluntary,  (6)  Compulsory?  ....  191-209 

12.  Repeal  of  Other  Laws? 210-233 

13.  Constitutionality? 233-272 


215467 


PAGE 

Miscellaneous  Business 272-275 

Advisory  Conference  of  Drafting  Committee  and  Law- 
yers OF  Commissions 276-302 

Decision  of  Supreme  Court  of  New  York  on  New  York 
Compensation  Act  in  Ives  v.  The  South  Buffalo  Rail- 
way Company 303-306 

Opinion  of  Samuel  Williston,  LL.D. — Constitutionality 

OP  Workmen's  Compensation  Acts 307-314 

Letter  from  National  Civic  Federation 315-316 

Committee's  Uniform  Drafts  of  Employees'  Compensa- 
tion Codes: 

Mandatory  System 317-334 

Elective  System 335-337 

Committee's  Notes  on  Codes 338-362 


CONFERENCE  OF  COMMISSIONS  ON 
COMPENSATION  FOR  INDUSTRIAL  ACCIDENTS^ 
CHICAGO,   NOVEMBER  10-12,  1910.  . 


H.  V.  MERCER,  Minneapolis,  Minn.,  Chairman. 
AMOS  T.  SAUNDERS,  Clinton,  Mass.,  Secretary. 


COMMISSIONS  PARTICIPATING 

United  States  Employers'  Liability  Commission: 

William  Warner,  U.S.S.,  Chairman;  Charles  J.  Hughes,  Jr., 
U.S.S.;  William  G.  Brantley,  M.C.;  Edwin  Denby,  M.C.;  W.  C. 
Brown,  President,  N.  Y.  Central  R.R.;  D.  L.  Cease,  Editor  The 
Railroad  Trainman;  Launcelot  Packer,  Secretary. 

Illinois  Employers'  Liability  Commission,  317  Fisher  Building,  Chi- 
cago, 111.: 
Charles  Piez,  Chairman;  *Edwin  R.  Wright,  Secretary;  Samuel  A. 
Harper,  Attorney;  Mason  B.  Starring;  *E.  T.  Bent;  M.  J.  Boyle; 
Patrick  Carr;  John  Flora;  *George  Golden;  R.  E.  Conway,  East 
St.  Louis,  111.;  Daniel  J.  Gorman,  Peoria,  111.;  P.  A.  Peterson,  Rock- 
ford,  111. 

Massachusetts  Commission  on  Compensation  for  Industrial  Accidents, 
State  House,  Boston,  Mass. : 
*  James  A.  Lowell,  Chairman,  Boston;  *Amos  T.  Saunders,  Secretary, 
Clinton;  *Magnus  W.  Alexander,  Boston;  *Henry  Howard,  Boston; 
♦Joseph  A.  Parks,  Fall  River;  *Carroll  W.  Doten,  Chief  Investigator , 
Boston. 

Minnesota  Employees'  Compensation  Commission: 

*H.  V.  Mercer,  Minneapolis,  Minn.;  *Geo.  M,  Gillette,  Minne- 
apolis, Minn.;  *W.  E.  McEwen,  St.  Paul,  Minn. 

Employers'  Liability  Commission  op  Montana: 

*Judge  W.  L.  HoUoway,  Chairman,  Helena,  Mont.;  Neill  Collins, 
Anaconda,  Mont.;  J.  C.  Lowney,  Butte,  Mont.;  J.  H.  Hall,  Helena, 
Mont.;  H.  G.  Miller,  Kalispell,  Mont.;  C.  W.  Goodale,  Butte,  Mont.; 
J.  E.  McNally,  Butte,  Mont.;  W.  F.  Meyer,  Deer  Lodge,  Mont. 

New  Jersey  Employers'  Liability  Commission: 

*Wm.  B.  Dickson,  President,  New  York,  N.Y.;  J.  WilUam  Clark, 
Newark,  N.J.;  John  T.  Cosgrove,  Ehzabeth,  N.J.;  Samuel  Botterill, 

*  Present  at  Conference. 


East  Orange,  N.J.;  Walter  E.  Edge,  Atlantic  City,  N.J.;  Edw.  K. 
Mills,  Morristown,  N.J.;  *Dr.  Albert  A.  Snowden,  Secretary,  Roselle 
Park,  N.J. 

New  York  Commission  on  Employers'  Liability,  etc.,  Metropolitan  Life 
Building,  New  York: 
*J.  Mayhew  Wainwright,  Chairman;  Henry  R.  Seager,  Vice-Chair- 
man;  Frank  C.  Piatt;  Howard  R.  Bayne;  Alfred  D.  Lowe;  George  A. 
Voss;  Frank  B.  Thorn;  Cyrus  W.  Phillips;  Edward  D.  Jackson; 
George  W.  Smith;  PhiHp  Titus;  Otto  M.  Eidlitz;  John  Mitchell; 
Joseph  P.  Cotton,  Jr.,  Counsel;   Crystal  Eastman,  Secretary. 

Employers'  Liability  Commission  of  Ohio: 

*James  Harrington  Boyd,  Chairman,  Toledo,  Ohio;  J.  W.  Perks, 
Springfield,  Ohio;  *W.  J.  Rohr,  Cincinnati,  Ohio;  *W.  J.  Winans, 
Galion,  Ohio;   *J.  P.  Smith,  Cleveland,  Ohio. 

Commission  on  Compensation  for  Industrial  Accidents  of  Washington  : 
Harold  Preston,  Counsel,  Seattle,  Wash.  (No  list  of  members  of  this 
Commission.) 

Wisconsin  Industrial  Insurance  Committee: 

*A.  W.  Sanborn,  Chairman,  Ashland,  Wis.;  E.  T.  Fairchild,  Milwau- 
kee, Wis.;  John  J.  Blaine,  Boscobel,  Wis.;  Wallace  Ingalls,  Racine, 
Wis.;  C.  B.  Culbertson,  Stanley,  Wis.;  Walter  D.  Egan,  Superior, 
Wis.;  George  G.  Brew,  West  Milwaukee,  Wis.;  *Paul  J.  Watrous, 
Secretary. 

Connecticut  Special  Delegate: 

♦Walter  S.  Schutz,  Hartford,  Conn. 

Special  Committee  on  Uniform  State  Laws  to  prepare  a  Uniform 
Workmen's  Compensation  Law: 
♦HoUis  R.  Bailey,  Chairman,  19  Congress  Street,  Boston;  Charles 
Thaddeus  Terry,  Secretary,  100  Broadway,  New  York;  *Aldis  B. 
Browne,  1419  F  Street,  N.W.,  Washington,  D.C.;  John  R.  Hardin, 
Prudential  Building,  Newark,  N.J.;  Peter  W.  Meldrim,  15  Bay  Street, 
West,  Savannah,  Ga.;  George  Whitelock,  1407  Continental  Trust 
Building,  Baltimore,  Md.;  *John  H.  Wigmore,  Dean,  Northwestern 
University  School  of  Law,  Northwestern  University  Building,  Chi- 
cago, 111.  ^  J*^ 

United  States  Bureau  of  Labor: 

♦Charles  P.  Neill,  Commissioner  of  Labor,  Washington,  D.C.;  ♦L.  W. 
Chaney. 

♦  Present  at  Conference. 


PROCEEDINGS 

CONFERENCE  OF  COMMISSIONS  ON  COMPENSATION 
FOR  INDUSTRIAL  ACCIDENTS,  CHICAGO, 
NOVEMBER    10-12,    1910. 


First  Session,  Thursday,  November  10,  1910,  10  A.M. 

The  first  meeting  of  the  Conference  was  called  to  order  by 
James  A.  Lowell,  Chairman  of  the  Massachusetts  Commission,  at 
ten  o'clock  a.m.,  on  Thursday,  November  10,  1910. 

The  Chairman:  This  meeting  will  come  to  order,  and  I  hope 
that  it  will  be  a  very  informal  meeting.  We  called  it,  you  might 
say,  from  Massachusetts,  because  we  were  probably  the  Com- 
mission which  knew  the  least  of  those  which  have  to  report  next 
January,  and  we  are  earnestly  seeking  information. 

I  am  very  glad  to  see  the  gentlemen  here  who  are  here,  and  I 
think  we  have  got  just  about  a  good  working  body  of  men. 

The  first  question  that  comes  up,  I  suppose,  is  the  organization 
of  this  meeting,  and  the  first  thing  in  order  is  the  election  of  a 
permanent  chairman.    Are  there  any  nominations? 

Mr.  Alexander:  I  move  that  Mr.  Mercer,  of  the  Minnesota 
Commission,  be  appointed  permanent  chairman. 

The  Chairman  :  Are  there  any  other  nominations?  If  not,  all 
those  in  favor  of  the  motion  will  so  signify  by  saying  aye. 

The  motion  prevailed. 

The  Chairman:  The  next  question  comes  on  the  election  of  a 
secretary  of  this  meeting. 

Mr.  Gillette:  I  move  that  Mr.  Saunders,  of  the  Massachu- 
setts Commission,  be  appointed  secretary. 

There  being  no  further  nominations,  Mr.  Saunders  was  declared 
secretary  of  the  meeting. 

The  Chairman  :  Thejnext  question  is.  What  shall  we  do  pend- 
ing the  arrival  of  Mr.  Mercer? 

Mr.  Gillette  :  I  move  you  that  Mr.  Lowell  act  as  temporary 
chairman  pending  the  arrival  of  the  permanent  chairman. 

The  motion  prevailed. 


6 

The  Chairman:  Thank  you.  The  question  comes  now  on  how 
we  shall  proceed  here.  I  think  we  can  possibly  settle  that  while 
we  are  waiting  for  Mr.  Mercer. 

Mr.  Bailey  :  A  suggestion  was  made  in  the  letter  of  invitation 
that  we  have  a  roll-call,  and  that  each  Commission  make  a  state- 
ment, by  some  one  of  its  members  here  present,  of  its  organiza- 
tion and  what  it  has  done,  and  so  forth.  I  think  that  was  a  good 
suggestion,  and  I  move  that  it  be  carried  out;  that  there  be  a 
roll-call,  followed  by  a  statement  from  each  Commission  of  the 
law  it  works  under,  what  it  has  done,  and  anything  further  in  a 
brief  way.     Just  an  outline  of  what  it  has  done. 

The  Chairman:  You  have  heard  Mr.  Bailey's  motion.  Are 
there  any  remarks  on  that  motion?  If  not,  all  in  favor  will  sig- 
nify by  saying  aye. 

The  motion  prevailed. 

The  Chairman:  I  suppose  we  might  as  well  proceed  with  the 
reports.  I  will  ask  Mr.  Cease  to  tell  us  what  the  United  States 
Employers'  Liability  Commission  has  done. 

Mr.  Cease:  Mr.  Chairman  and  gentlemen,  the  Federal  Com- 
mission was  organized  on  the  22nd  of  October,  and  a  partial 
plan  of  procedure  was  adopted.  The  first  business  meeting  of  the 
Commission  will  not  be  held  until  the  8th  of  December.  Conse- 
quently, the  report  of  the  Federal  Commission  is  very  brief. 

The  Chairman:  Thank  you,  Mr.  Cease.  Mr.  Wainwright, 
I  think  we  all  know,  perhaps,  what  has  taken  place  in  New  York, 
but  we  should  like  to  hear  from  you. 

Mr.  Wainwright:  I  don't  think  it  is  necessary,  Mr.  Chairman, 
for  me  to  make  any  report.  I  rather  assume  that  the  members 
of  the  different  Commissions  are  familiar  with  what  has  been  done 
in  New  York.  Our  Commission  was  appointed  in  May,  1909. 
We  made  a  report  to  the  Legislature  in  March,  1910,  and  the 
bills  reported  were  virtually  adopted  by  the  Legislature  with  very 
few  dissenting  votes, — in  fact,  I  think  the  Senate  vote  was  unan- 
imous, and  in  the  House  there  w^ere  only  four  votes  against  it. 
We  placed  upon  the  statute  books  of  our  State  amendments  to 
our  Employers'  Liability  Statute,  modifying  the  rule  as  to  fellow- 
servants,  changing  the  rules  as  to  contributory  negligence  and 
assumption  of  risk,  and,  conjointly  with  that,  providing  for 
voluntary  agreements  between  employers  and  employees,  upon 
the  basis  of  the  Workmen's  Compensation  Act,  which  we  adopted. 
Our  Workmen's  Compensation  Act  is  somewhat  limited  in  scope, 


and  yet  it  covers  a  great  many  thousands  of  men.  It  is  modelled 
somewhat  on  the  English  act,  and  I  assume  you  are  familiar  with 
it.  It  went  into  effect  on  the  first  day  of  September.  It  has 
therefore  been  in  operation  but  a  little  over  sixty  days,  and  it  is 
hard  as  yet  to  pass  upon  what  the  effect  of  its  operation  will  be, 
except  that  what  we  all  knew  would  happen  has  happened, — the 
insurance  rates  have  gone  up,  and  therefore  it  has  been  demon- 
strated that  the  operation  of  the  statute  will  considerably  increase 
the  cost.  Within  a  week  or  ten  days  after  the  act  took  effect,  a 
case  was  taken  undtT  it  at  Buffalo,  and  upon  a  demurrer  to  the 
complaint  the  constitutionality  of  the  act  was  argued  at  the  Spe- 
cial Term,  Erie  County,  Supreme  Court,  and  the  act  was  sustained. 
The  appeal  has  already  been  heard  in  the  Appellate  Division  of 
the  Supreme  Court,  and  the  judgment  of  the  court  below  affirmed 
in  a  pro  forma  opinion,  and  it  is  now  in  the  Court  of  Appeals. 
Motion  will  shortly  be  made  to  advance  the  case  in  the  Court  of 
Appeals,  and  there  should  be  a  decision  upon  it  within  the  next 
three  or  four  months. 

As  far  as  the  New^  York  Commission  is  concerned,  we  feel  that, 
for  the  present  at  least,  the  book  is  closed,  that  the  first  act  of 
the  drama  has  been  played.  We  are  perfectly  willing  to  stand  upon 
that,  and  wait  the  future  to  demonstrate  how  right  or  how  wrong 
we  were,  and  we  feel  that  we  have  at  least  made  a  valuable  con- 
tribution to  this  subject  in  actually  getting  something  done.  No 
people  appreciated  the  difficulty  more  than  we  did,  but  our  Com- 
mission believed  that  it  was  better  to  make  a  start  on  this  subject, 
even  though  we  might  not  be  absolutely  correct  in  our  decision, 
rather  than  to  indefinitely  postpone  any  action  upon  it;  and  we 
hope  that  what  we  have  accomplished  will  be  of  some  assistance 
to  the  Commissions  of  the  other  States.  We  feel  quite  sure  that 
we  can  acquire  some  further  wisdom  from  their  deliberations,  and 
we  shall  be  very  glad  to  follow,  and  will  follow  very  closely,  as 
long  as  our  Commission  is  in  existence  (which  will  be  for  another 
year),  the  course  of  this  movement  in  other  States,  as  an  indication 
of  how  much  our  act  should  be  modified.  The  important  feature, 
as  I  said,  has  been  the  very  great  increase  in  the  insurance  rates. 
The  cost  has  been  so  high  that  it  must  attract  the  attention  and 
concern  of  all  interested  in  this  subject.  What  we  tried  to  do  was 
to  pass  a  constitutional  law,  one  in  which  the  cost  would  not  be 
prohibitive  and  one  which  would  not  handicap  our  industries, 
which  compete  with  the  industries  of  other  States. 


8 

Mr.  Gillette:  What  questions  were  raised, — what  were  the 
constitutional  questions  raised  on  this? 

Mr.  Wainwright:  The  simple  question  as  I  recall — I  am  not 
very  familiar  with  the  decision — was  that  you  could  not  impose 
upon  a  man  a  liability  which  arose  through  no  fault.  The  opinion 
is  a  very  short  one.  I  have  it  here.*  I  don't  think  they  went 
into  any  other  question  whatever.  They  confined  it  wholly  to 
that  one  point. 

A  Member:  Can  I  ask  Mr.  Wainwright  which  of  the  two 
acts  recommended  by  his  Commission  last  March  was  passed? 

Mr.  Wainwright:  All  the  acts  recommended  by  our  Com- 
mission were  passed. 

Mr.  Dickson:  I  think  in  your  report,  Mr.  Wainwright,  there 
is  a  little  table  which  comprises  the  report  of  nine  liability  com- 
panies, and  my  recollection  is  that  it  showed  that,  of  all  the  money 
paid  to  those  insurance  companies  by  employers,  only  about 
thirty-seven  per  cent,  actually  got  to  the  injured  workers.  Is 
that  correct? 

Mr.  Wainwright:  Well,  I  don't  remember  the  exact  figures, 
and  I  want  to  say  to  the  gentlemen  here  present  that  I  do  not 
know  that  I  am  as  competent  to  be  heckled  on  this  proposition 
[laughter]  as  some  other  members  of  my  Commission,  because  I 
think  it  is  only  fair  to  state  what  my  province  in  our  Commission 
was.  I  was  the  Chairman  of  the  Commission, — a  large  Commission 
of  twelve, — composed  of  representatives  of  the  employing  class, 
employees,  legislators,  sociologists,  and  labor  people;  and  others 
besides  myself  furnished  the  expert  talent  upon  that  Commission, 
and  my  province  was  to  hold  the  Commission  together  and  to 
attempt  to  reconcile  conflicting  views  and  to  get  something  done. 
Now,  if  you  ask  me  what  the  proportion  shown  was,  I  do  not 
remember.  My  impression  was  that  it  was  a  mere  estimate. 
I  do  not  think  anybody  testified  to  any  exact  figures.  Some  of 
them  said  it  was  as  high  as  forty  per  cent.,  and  others  that  it  was 
not  more  than  twenty-five  per  cent,  of  the  amount  paid  by  the 
employers.  I  understand  your  question  is  as  to  how  much  of  the 
fund  that  was  paid,  the  total  fund  paid  by  the  employers  for  in- 
surance to  the  liabilities  companies,  actually  got  into  the  hands  of 
the  injured  workmen.  As  I  say,  our  evidence  varied  from  twenty- 
five  to  forty  per  cent. 

Mr.  Dickson  :  I  want  to  follow  that  by  this.    If,  as  the  result 

♦  See  Appendix  "  A."    ' 


9 

of  your  law,  premiums  have  been  greatly  increased,  which  is  no 
doubt  the  case,  will  that  same  percentage,  in  your  judgment, 
hold  good  in  the  larger  amount?  In  other  words,  will  any  more 
go  to  the  workmen — I  mean  in  percentage — than  now  goes? 

Mr.  Wainwright:  I  should  say  yes,  because,  if  we  decrease 
litigation — such  a  large  proportion  of  that,  or  a  very  large  pro- 
portion of  it,  went  to  defending  these  lawsuits.  Now,  if  we  de- 
crease the  litigation,  it  will  release  just  so  much  more  money,  I 
presume. 

The  Chairman:  Gentlemen,  Mr.  Mercer  has  come,  and  it 
gives  me  great  pleasure  to  introduce  him  as  chairman  of  this 
Conference. 

(Mr.  Mercer  in  the  Chair.) 

The  Chairman  (Mr.  Mercer):  I  thank  you  for  the  honor, 
gentlemen.  You  will  allow  me  to  make  a  suggestion.  I  think 
that  in  making  these  statements,  if  they  proceed  to  tell  what  the 
States  have  done,  and  then  take  up  the  questions  under  the 
various  lines  that  have  been  indicated  here,  as  I  understand  your 
program,  we  shall  get  along  very  much  faster,  because  we 
shall  have  to  cover  the  same  ground  again  when  we  get  down  to  it. 
There  may  be  things  occur  to  you  that  you  want  to  ask.  I  want 
to  do  what  the  rest  of  you  want  to  do,  but  in  our  past  experience 
we  have  found  in  our  meetings  that,  if  we  take  up  a  subject  at  the 
end  of  each  gentleman's  talk,  we  are  likely  to  waste  a  great  deal 
of  time  before  we  get  through.  I  simply  make  that  suggestion, 
and,  if  you  approve  it,  you  can  follow  it,  and,  if  not,  you  can  decide 
what  you  want  to  do.  Ohio  is  next.  Will  any  one  represent 
Ohio? 

Mr.  Boyd:  Mr.  Chairman,  the  Employers'  Liability  Com- 
mission of  Ohio  was  appointed,  pursuant  to  a  statute,  by  the  Gov- 
ernor about  the  1st  of  July.  The  Commission  organized  on  the 
fifth  day  of  August,  and  spent  a  month  in  historical  investiga- 
tion. We  had  our  first  regular  business  meeting  the  first  part  of 
September.  We  outlined  our  plan  of  investigation  somewhat 
along  the  lines  of  the  New  Yor^- Commission.  We  sent  out  a 
great  many  circulars  to  employees  and  to  employers,  lawyers, 
judges,  and  so  forth.  The  Commission  has  been  holding  hear- 
ings. We  held  three  hearings  in  Dayton,  the  6th  and  7th  of  Octo- 
ber; three  in  Cincinnati,  the  13th  and  14th  of  October;  three  in 
Youngstown,  the  20th  and  21st  of  October;  and  four  very  re- 
markable hearings  in  Cleveland  on  October  31st,  November  1st, 


10 

and  November  2nd.  Those  hearings  in  Cleveland  are  typical  on 
the  average  of  what  the  investigations  in  the  State  of  Ohio,  which 
are  now  taking  place,  have  developed.  We  had  quite  a  large 
hall,  which  was  crowded  from  the  beginning  of  each  hearing  until 
the  end,  and  scarcely  a  man  left  until  the  hearing  was  concluded. 
There  were  about  forty  papers  read  by  eminent  attorneys,  em- 
ployers of  labor,  employees  themselves,  and  even  the  Hungarian 
consul  took  part  in  the  hearing.  We  had  three  hearings  in  Toledo 
on  November  3rd  and  4th.  Our  final  hearings  will  begin  in 
Columbus  on  November  30th,  and,  as  far  as  I  can  gather,  will 
last  for  four  or  five  days,  two  hearings  each  day,  in  which  the  in- 
vestigators for  the  National  Manufacturers'  Association  will 
open  the  hearing  by  Mr.  Schweitman  and  Mr.  Emory. 

We,  of  course,  have  not  yet  arrived  at  any  conclusions  as  to 
what  w^e  shall  recommend  We  are  trying  to  educate  the  public 
in  Ohio  as  to  what  are  the  fundamental  principles  of  the  Compen- 
sation Act  which  was  created  and  put  through  the  Reichstag  by 
Bismarck,  also  the  English  Compensation  Act,  of  which  the  New 
York  law  is  a  chip  off,  and  the  Montana  act,  which  is  an  act  re- 
ferring to  a  single  class  of  employment;  namely,  coal  miners. 
We  are  going  into  the  minor  details  of  all  the  investigations  which 
have  taken  place;  and  we  are  required  by  statute  to  make  a  re- 
port to  the  Legislature  next  January.  We  are,  of  course,  very 
anxious  that  this  Conference  of  Commissions  shall  be  able  to 
arrive  at  a  uniform  bill  which  can  be  recommended  to  the  Legis- 
latures of  as  many  States  as  possible,  following  this  Conference. 
I  take  it,  Mr.  Chairman,  that  it  is  not  intended  to  give  a  r^sum^ 
of  what  the  statutes  in  the  State  of  Ohio  contain, — ^in  what  way 
they  modify  the  common  law  defences, — that  you  simply  want  to 
report  on  the  work  that  has  been  done  and  is  being  done. 

The  Chairman:  In  connection  with  their  commissions — ^that 
is,  you  have  not,  as  I  assume,  had  any  laws  passed  as  yet? 

Mr.  Boyd  :  No,  and  we  are  not  in  position  to  recommend  any. 
Of  course,  we  have  in  our  minds  the  lines  along  which  we  will  act 
to  a  certain  extent,  but  we  have  not  made  them  public,  and  do 
not  intend  to  make  them  public  until  the  laws  are  written. 

I  might  state  this,  that  it  is  almost  the  uniform^  opinion  of  both 
the  employer  and  employee — I  cannot  at  present  recall  a  single 
exception — of  compensating  all  injuries,  regardless  of  neghgence, 
except  maHcious  negligence.  Both  employees  and  employers 
are  in  favor  of  that  unequivocally.     Now,  as  to  the  question  of 


11 

making  it  obligatory,  diverse  opinions  have  been.,expressed  on  that 
subject,  making  it  obligatory  on  the  part  of  the  employer,  mak- 
ing Tfobligatory  on  the  part  of  the  employee;  and  one  point  which 
is  being  very  thoroughly  discussed  is  the  question  of  whether  the 
compensation  should  be  raised  by  an  insurance  plan,  so  that  the 
moment  the  compensation  is  determined  it  will  be  paid  out  of  a 
fund,  and  not  come  so  hard  on  small  employers,  for  in  Ohio  we 
have  fifty  per  cent,  of  our  employers  who  employ  less  than  twenty 
men.  At  the  end  of  a  year  you  would  have  thousands  of  small 
employers  put  out  of  business,  and  we  cannot  recommend  an  act 
that  would  do  that,  because  it  would  do  more  harm  than  it  would 
do  good.  I  think  it  is  safe  for  me  to  say  that  the  consensus  of 
opinion  of  both  employers  and  employees  is  in  favor,  if  possible, 
of  raising  this  fund  by  a  plan  of  insurance  along  the  Unes  of  the 
German  act  in  that  respect. 

The  Chairman  :  The  next  State  in  order  is  Minnesota,  and  I 
will  ask  Mr.  Gillette  to  represent  Minnesota. 

Mr.  Gillette:  I  think  I  may  safely  say,  gentlemen,  that  the 
State  of  Minnesota  has  as  yet  arrived  at  no  concrete  conclusion. 
By  that  I  mean  that  it  would  not  be  safe  for  me  to  say  that  we 
have  arrived  at  any  conclusions  which  fairly  represent  the  sense 
of  the  Commission,  because  we  have  not  attempted  so  to  do. 
Our  Commission  consists  of  only  three  members^-one  representing 
the  labor  interests  of  the  State,  one  representing  the  state  Bar 
Association,  and  one  member  representing  the  employers^  interests 
of  the. State^_ The  time  of  the  Commission  up  to  this  date  has 
largely  been  spent  in  acquiring  information  upon  which  to  base 
their  conclusions  and  their  recommendations  as  to  a  compensation 
act.  I  think  I  can  safely  .say  that  there  is  a  vast  preponderance 
of  opinion  in  Minnesota  in  favor  of  changing  from  the  present 
theory  of  negligence  to  that  of  compensation.  In  Minnesota  we 
have  not  had  hearings.  The  Commission  has  not  deemed  it  wise 
to  hold  these  hearings  up  to  the  present  time,  for  the  reason  that 
it  might  possibly  bring  forth  expressions  of  opinion  from  either 
the  employing  or  the  employed  class  or  representatives  of  society 
at  large,  which,  having  once  been  expressed,  would  be  more  diffi- 
cult to  change,  and  the  information  regarding  this  subject  we  found 
to  be  not  so  much  a  matter  of  such  common  possession  that  the 
public  generally  has  been  enabled  to  enlighten  the  Commissions 
of  the  States  to  a  very  great  degree.  They  are  able  to  express 
what  they  would  like  to  have,  but  not  to  really  express  sound 


12 

reasons  why  a  thing  of  Ihis  kind  or  that  kind  should  be  passed. 
We  have  not  believed  that  the  Commission  would  acquire  very 
much  information  from  such  hearings.  The  Commission  started 
in  at  first  to  devote  itself  to  the  study  of  some  of  the  constitu- 
tional questions  involved,  so  that  we  might  determine  the  lines 
along  which  legislation  could  be  enacted.  We  are  very  fortu- 
nate in  having  on  this  Commission  the  chairman  of  your  meet- 
ing, Mr.  Mercer,  and  I  understand  that  all  the  constitutional 
problems  involved  have  been  settled  to  his  entire  satisfaction. 
[Laughter.]  I  presume  he  is  only  waiting  a  decision  in  the  New 
York  case  to  sustain  his  opinion,  and  then  we  shall  feel  sure  that 
we  are  treading  along  right  lines.  These  problems  are  funda- 
mental, because  I  can  see  and  you  can  see  at  the  outset  how  we 
might  frame  an  act  upon  the  theory  that  it  was  within  our  power 
to  frame  such  an  act,  and  that  the  whole  work  might  be  upset 
by  the  court  thereafter. 

The  other  questions  which  are  involved  and  which  relate  to 
the  practicability  of  an  act,  questions  relating  to  cost,  contribu- 
tion, duration  of  compensation,  waiting  period,  and  all  those 
questions,  have  been  discussed.  I  am  inclined  to  think  that  the 
Commission  are  fairly  well  agreed  in  regard  to  most  of  them. 
All  the  members  of  our  Commission  have  been  to  Europe,  and 
have  studied  the  working  of  the  foreign  acts  abroad.  I  know 
that  my  own  views  have  been  modified  somewhat  by  the  informa- 
tion secured  over  there,  and  I  doubt  not  that  the  minds  of  the 
other  members  of  the  Commission  have  been  likewise  affected. 

The  greatest  good  which  I  secured  myself  there  was  the  infor- 
mation in  regard  to  the  difficulties  which  have  been  experienced  in 
the  operation  and  administration  of  these  foreign  acts,  and  the 
greatest  help  which  I  have  secured,  as  I  say,  lies  along  the  lines 
of  having  had  pointed  out  in  that  way  the  things  which  should  be 
avoided  in  the  enactment  of  laws  in  this  country.  Our  Commis- 
sion will  be  obliged  to  report  in  January.  We  have  not  formed 
our  bill  yet,  although  it  is  under  way,  and  we  are  awaiting  the 
results  of  this  Conference.  Our  Commission  is  heartily  in  sym- 
pathy with  the  idea  of  uniformity  in  legislation  in  the  various 
States.  There  is  no  question  in  my  mind,  and,  I  believe,  in  the 
mind  of  any  member  of  our  Commission,  but  that  through  uni- 
formity of  legislation  probably  some  of  the  difficulties — particu- 
larly as  relates  to  the  operation  of  any  compensation  act — will 
be  greatly  diminished;    in  other  words,  that  by  reason  of  the 


13 

competitive  conditions  now  existing  between  the  various  States 
the  increased  cost  which  is  bound  to  flow  from  the  enactment  of 
any  compensation  law  will  not  become  so  burdensome  to  the 
industry  of  any  State,  provided  there  is  a  like  increase  in  cost  in 
all  surrounding  States. 

I  do  not  know  of  anything  more  that  I  can  add  to  what  Minne- 
sota has  done. 

The  Chairman:  The  next  is  Illinois.  Who  will  represent 
Illinois? 

Mr.  Golden  :  In  the  absence  of  the  Chairman,  I  was  asked  to 
represent  the  Illinois  Commission  here  to-day,  and  Mr.  Wright, 
our  Secretary,  will  probably  be  here  to-morrow. 

I  want  to  say  that,  so  far  as  the  Commission  is  concerned,  that 
was  appointed  March  24th.  We  have  made  our  report,  and  we 
have  disagreed.  The  conclusions  that  we  have  come  to  are  con- 
tained in  this  book  here,  which  is  our  full  report.  We  were  com- 
pelled to  report  on  the  fifteenth  day  of  September  last :  our  time 
was  up. 

Mr.  Gillette:  May  I  ask  what  you  split  over? 

Mr.  Golden:  Well,  I  want  to  say,  gentlemen,  that  we  have 
a  couple  of  members  on  the  Commission  from  the  labor  side  that 
were  a  little  bit  socialistic,  and  they  went  down  state  and  advocated 
the  compensation  plan  all  the  way  through,  and  tried  to  show  differ- 
ent members  at  the  different  meetings  in  St.  Louis,  Peoria,  and 
Springfield  and  Rock  Island,  that  it  was  a  very  good  idea,  and  then 
they  came  right  back  here  to  Chicago  and  took  dictation  from 
somebody  else,  and  they  simply  stated  that  they  would  not  sign 
a  compensation  plan,  no  matter  what  the  amount  might  be  men- 
tioned in  the  bill,  and  we  simply  found  that  we  were  up  against 
something  that  we  could  not  make  good  on.  And  the  four  com- 
missioners from  the  labor  end  of  it,  Edwin  R.  Wright  and  myself 
and  Daniel  J.  Gorman  and  Patrick  Carr,  a  miner,  we  simply  agreed 
that  we  would  disagree  with  these  two  members,  and  this  book 
here  contains  our  full  report.  I  do  not  think  there  is  anything 
further  I  can  add.  I  do  not  know  how  soon  the  Commission  is 
going  to  take  hold  of  this  matter  again. 

Mr.  Gillette:  Were  you  familiar  with  the  prior  Commission 
of  Illinois? 

Mr.  Golden:  No,  I  was  not. 

Mr.  Gillette:  The  laboring  people,  as  I  understand, — I  am 
just  speaking  from  memory, — were  opposed  to  a  compensation  act. 


14 

Mr.  Golden:  I  think  they  are  very  foolish.  I  want  to  say 
when  we  are  being  paid  from  three  hundred  and  fifty  to  four  hun- 
dred dollars  for  death,  and  by  a  compensation  fund  they  can  get 
from  fifteen  hundred  to  three  thousand  dollars,  I  think  they  were 
very  foolish  to  turn  it  down.  We  had  the  tentative  bill  brought 
up  before  the  public  in  all  the  little  cities  that  I  mentioned  down 
state,  and  they  talked  over  the  dififerent  points.  Mr.  Mercer, 
I  believe,  was  at  one  of  our  meetings,  and  we  at  one  of  his.  The 
laboring  people  were  all  in  favor  of  it,  but  still  those  two  com- 
missioners came  back  here  and  made  it  impossible  for  us  to  come  to 
an  agreement  that  would  be  of  benefit  to  the  working  people  and 
the  employer  also.  The  teamsters  and  the  laborers  simply  get 
nothing,  and  you  can  see  there  for  yourself  just  what  each  different 
class  receives  in  payment  for  death  or  total  disability. 

Mr.  Rohr:  Might  I  ask  you,  Mr.  Chairman,  if  it  is  possible 
to  have  a  copy  of  that  for  each  member  of  this  Conference? 

Mr.  Golden:  I  believe  you  will  be  able  to  get  that,  and  I 
believe  Mr.  Wright  will  be  able  to  tell  you  that  definitely  to- 
morrow. He  was  out  of  the  citj^  to-day,  and  asked  me  to  come 
down,  so  that  Illinois  would  be  represented. 

The  Chairman:  Mr.  Dickson  is  here,  I  think,  to  represent 
New  Jersey. 

Mr.  Dickson:  Mr.  Chairman,  as  I  stated  to  one  or  two 
gentlemen  before  the  meeting  came  to  order,  the  New  Jersey 
Commission  is  in  what  you  might  call  the  ruminant  stage.  They 
have  held  a  series  of  open  meetings,  at  which  both  employers  and 
employees  appeared,  mostly  officers  of  labor  organizations.  The 
members  of  the  Commission  did  not  attach  very  much  impor- 
tance to  these  meetings,  for  the  reason  that  the  entire  membership, 
consisting  of  six, — two  labor  men,  two  members  of  the  Legis- 
lature, and  two  employers  of  labor, — found  themselves  practically 
unanimous  in  the  opinion  that  changes  in  the  present  law  were 
desirable,  and  we  felt  that  these  meetings  could  bring  forth 
nothing  except  that  same  feature;  that  is,  the  desirability  for  a 
change.  We  were,  however,  impressed  by  the  number  of  em- 
ployers who  were  in  hearty  sympathy  with  the  general  idea  of 
improving  the  present  system.  We  did  find,  however,  on  the 
part  of  most  of  those  who  appeared,  a  feeling,  which  may  have 
been  justified  by  a  similar  feeling  on  the  part  of  a  certain  eminent 
personage,  that  they  did  not  have  any  proper  appreciation  of  the 
fact  that  both  the  state  and  the  nation  have  a  constitution,  which 


16 

must  be  taken  into  account.  [Laughter.]  We  have  a  large 
amount  of  information,  which,  as  I  say,  we  are  trying  to  digest. 
We  have  prepared  within  the  last  week  two  letters  which  we  pro- 
pose to  send  out  to  the  most  prominent  members  of  the  bar  and 
judges,  which,  while  it  does  not  in  any  way  reflect  what  is  going 
to  be  the  final  act  of  the  Commission,  does  show  the  points  on 
which  we  want  information.  If  you  care  to  have  me  read  them, 
I  can  do  so  at  this  time.  This  letter  we  have  prepared  and  sent 
out  to  the  prominent  members  of  the  bar. 

71  Broadway,  New  York, 

November  9th,  1910. 

Dear  Sir:  The  Employers'  Liability  Commission  of  New  Jersey,  recently 
appointed  by  Governor  Fort  under  authority  of  a  resolution  of  the  last  Legis- 
lature, has  held  during  the  past  summer  a  series  of  open  meetings,  at  which 
a  large  number  of  employers  and  representative  associations  of  workmen 
appeared. 

As  a  result  of  these  meetings  and  from  a  general  study  of  the  working  of 
the  present  system  of  administering  the  law  of  employers'  liability  in  this 
State,  the  Commission  is  convinced  that,  speaking  generally,  the  present 
status  of  the  law  is  not  satisfactory  either  to  the  employer  or  to  the  employ^. 
While  convinced  that  some  changes  are  desirable,  we  are  duly  impressed 
with  the  fact  that,  if  the  work  of  the  Commission  is  to  have  any  practical  re- 
sults, any  modifications  of  the  present  common  or  statute  law  must  be  in 
harmony  with  the  requirements  of  the  Federal  and  State  Constitutions. 

Having  in  view  the  importance  of  the  above  requirement,  the  Commission 
desires  to  ascertain  the  views  of  prominent  members  of  the  bar  of  this  State 
as  to  the  constitutionaUty  of  certain  suggested  changes.  The  members  of 
the  Commission  are  serving  without  compensation,  the  small  appropriation 
($1,300.00)  being  used  exclusively  for  office  and  other  incidental  expenses. 
The  Commission  has  no  express  authority  nor  has  it  means  to  employ  counsel. 
We  therefore  seek  legal  assistance  from  such  public-spirited  members  of  the 
bar  as  are  willing  to  give  us  the  benefit  of  their  views  as  a  public  duty. 

The  particular  questions  as  to  which  we  wish  your  opinion  are  as  follows: 

Are  there  constitutional  objections  to  the  enactment  by  the  Legislature  of 
this  State  of  statutes  to  the  following  effect: 

A — 1st:  A  statute  abrogating  as  a  defence  the  doctrine  of  "fellow-servant"? 

2nd:  A  statute  abrogating  as  a  defence  the  doctrine  of  "assumption  of 
risk"? 

3rd:  A  statute  providing  that  contributory  negligence  of  the  employ^ 
should  not  bar  the  action,  but  that  the  damages  should  be  assessed  by  the 
jury  in  proportion  to  the  comparative  neghgence  of  the  parties. 

4th:  A  statute  providing  that  the  burden  of  proof  as  to  contributory  neg- 
ligence shall  be  upon  the  employer. 

5th:  A  statute  providing  that  no  claims  for  legal  services  or  disbursements 
shall  be  a  lien  upon  the  recovery  or  enforceable  in  law  unless  the  same  be 
taxed  and  approved  by  a  Court  of  Record. 


16 

B — Ist:  A  statute  providing  that  the  employer  shall  be  directly  liable  to 
compensate  the  employ^  injured  in  his  employment  (without  regard  to  the 
question  of  neglect  or  failure  of  duty  of  the  employer)  unless  the  injury  was 
intentionally  caused  by  the  employ^  himself,  but  also  providing  that  the 
compensation  so  paid  be  fixed  in  amount. 

2nd:  If  the  answer  to  query  No.  1  is  in  the  afl5rmative,  a  statute  making 
void  any  agreement  to  forego  or  limit  the  liabilities  imposed  by  the  statute 
suggested  in  query  No.  1. 

3rd:  If  the  answer  to  query  No.  1  is  in  the  negative,  would  you  consider  a 
permissive  act  to  the  same  effect  constitutional  and  desirable? 

Aside  from  the  question  of  constitutionality  of  each  of  the  above  suggested 
statutes,  we  would  be  glad  to  have  your  opinion  as  to  the  desirability  in  each 
instance  of  making  these  changes  in  the  law  of  the  State,  or  as  to  any  other 
changes  pertinent  to  the  subject. 

We  would  appreciate  a  reply,  if  possible,  by  December  1st. 

Yours  very  truly. 

For  the  Commission. 


We  also  propose  to  send  out  to  the  judges  of  the  State  gener- 
ally this  letter: — 

My  dear  Sir:  We  are  addressing  a  letter  to  prominent  members  of  the 
bar  of  this  State,  a  copy  of  which  is  enclosed. 

We  recognize  the  fact  that,  in  view  of  your  judicial  oflSce,  it  would  be  im- 
proper to  ask  you  to  give  an  opinion  as  to  the  constitutionality  of  the  proposed 
legislation.  We  feel,  however,  that  your  experience  at  the  bar  and  on  the 
bench  has  given  you  exceptional  opportunity  to  form  definite  views  as  to  the 
eflSciency  of  the  existing  employers'  liability  laws. 

If  you  are  willing  to  express  opinions  as  to  the  practical  merits  of  the  sug- 
gestions contained  in  our  letter,  they  will  be  greatly  appreciated. 

Yours  very  truly, 

For  the  Commission. 

I  might  say,  in  conclusion,  that  in  conference  some  eminent 
attorneys  have  emphasized  the  point  brought  out  by  Mr.  Boyd 
that,  however  desirable  it  may  be  to  abrogate  or  modify  what  I 
think  most  of  us  believe  to  be  antiquated, — the  doctrine  of  fellow- 
servant,  assumption  of  risk,  and  contributory  negligence, — we 
ought  to  be  exceedingly  careful  not  to  take  any  such  steps  with- 
out putting  in  some  means  of  protection  to  the  small  employer. 

The  Chairman  :  Is  there  any  representative  of  Montana  here? 

As  there  is  no  one  here  to  represent  Montana,  I  will  now  call 
upon  the  Massachusetts  Commission.     Mr.  Lowell? 


17 

Mr.  Lowell:  Mr.  Chairman,  I  will  state  very  briefly  what  the 
situation  in  Massachusetts  is,  and,  in  order  to  explain  it,  I  shall 
have  to  say  a  word  or  two  about  our  present  law  there.  In  the 
first  place,  as  to  the  make-up  of  this  Conmaission.  Four  are  here, 
and  the  other  one  would  be  here  if  he  were  not  sick  in  bed.  There 
is  one  peculiar  thing  about  this  Commission, — pecuHar  in  Massa- 
chusetts, at  any  rate:  there  were  two  legislators,  members  of  the 
Commission,  one  of  whom  was  a  Democrat  and  the  other  a  Re- 
publican, and  they  were  both  re-elected.  The  RepubUcan,  Mr. 
Saunders,  is  before  you. 

The  law  of  Massachusetts  is  that  we  have  the  general  common 
law,  which  you  are  all  familiar  with,  and  we  have  an  Employers' 
Liability  Law,  which  you  are  probably  all  famihar  with.  None  of 
the  defences  has  been  taken  away  in  Massachusetts,  as  they 
have  in  other  States.  So  we  have  the  fellow-servant  doctrine, 
contributory  negligence,  assumption  of  risk.  The  Legislature  at 
the  last  session  passed  a  resolution  which  said  that  the  present 
law  was  unsatisfactory,  so  that  we  have  not  to  consider  the  ques- 
tion of  whether  or  not  it  is  unsatisfactory.  We  start  with  that. 
And  we  are  also  under  the  obligation  to  report  before  the  middle 
of  January  of  next  year  some  kind  of  a  law.  Those  two  things 
we  start  with.  Now  the  principal  difficulty  which  we  have  in 
Massachusetts  is  this:  as  you  all  probably  know,  the  greater 
bulk  of  our  Massachusetts  trade  is  the  kind  of  manufacturing 
which  will  not  be  classed  as  hazardous.  That  is,  it  is  nothing  like 
a  coal  mine  or  tunnelling  or  the  use  of  compressed  air,  or  any- 
thing of  that  sort.  A  very  large  percentage  of  it  is  either  textile 
manufacture  or  machine  shops,  things  of  that  kind,  so  that  in 
Massachusetts,  in  order  to  have  a  law  which  will  affect  the  State 
very  much,  we  have  got  to  get  a  law  which  will  cover  these  indus- 
tries which  are  not  hazardous.  That  special  distinction  will 
probably  come  out  later  when  we  discuss  the  constitutionality, 
and  we  need  not  stop  now  on  that  point. 

Now  the  principitl  difficulty  which  we  found  in  Massachusetts, 
and  I  suppose  you  have  everywhere  else,  is  the  question  of  find- 
ing out  the  statistics.  There  are  not  now  in  Massachusetts  any 
statistics  of  any  very  great  value  which  would  give  an  indication 
of  what  any  proposed  law  which  would  cover  practically  all  in- 
juries would  cost,  because  it  has  never  been  to  the  special  in- 
terest of  any  one  to  report,  and  they  have  never  been  required 
by  our  laws  to  report  all  of  the  accidents.    As  it  is  now,  we  will 


18 

say  that  only  two  out  of  ten,  or  whatever  the  percentage  may  be, 
can  recover  compensation.  So  that  the  only  accidents  reported — 
and  they  are  not  carefully  reported,  either — are  those  that  there 
would  be  a  liabiUty  under.  As  I  say,  our  present  statistics  are 
very  defective  on  that  account.  In  order  to  get  at  the  facts  as 
well  as  we  can  in  the  short  time  that  is  at  our  disposal,  we  have 
sent  out  to  a  selected  list  of  employers  in  the  more  important  in- 
dustries of  Massachusetts  a  report  to  be  made  by  those  indus- 
tries of  the  number  of  accidents  which  happen.  Any  time  an 
accident  happens, — in  the  industries  which  we  have  specified, — 
a  report  must  be  sent  to  us.  We  had  to  have  that  cover  a  short 
period  of  ten  weeks  from  the  middle  of  September  until  some  time 
about  now,  and,  when  we  get  that,  we  shall  have  a  basis — of  course, 
on  any  technical  idea  of  statistics,  it  is  a  very  insufficient  basis, 
but  it  is  the  best  we  could  get — for  getting  some  idea  of  what  the 
number  of  accidents  in  Massachusetts  is,  and  a  fairly  close  idea 
about  the  accidents  which  lay  up  a  man  for  more  than  two  weeks. 
We  shall  get  a  fair  basis  for  that.  We  have  selected  the  em- 
ployers in  order  to  give  a  fair  representation  of  the  large  employers 
and  the  small  employers,  and  of  country  employers  and  city  em- 
ployers, so  as  to  get  the  best  general  idea  we  can  of  what  the  facts 
are  in  Massachusetts.  Then,  in  addition  to  that,  we  have  sent  out 
to  a  very  much  larger  number  of  employers, — and  we  are  getting 
very  good  replies  from  them, — asking  them  to  tell  us  the  entire 
expense  which  they  were  put  to  during  the  last  year,  1909,  with 
relation  to  accidents.  Not  only  insurance,  if  they  are  insured, 
but  anything  which  they  pay  out  for  injured  employees.  For 
instance,  when  we  went  to  Lowell,  which  you  know  is  a  great 
manufacturing  town,  containing  many  cotton  and  woollen  mills, 
we  found  that  the  companies  there  had  the  custom,  whenever  any- 
body was  injured  in  their  mills,  to  send  him  at  once  to  a  hospital, 
and  a  very  large  part  of  the  revenue  of  that  hospital  comes  from 
these  mills.  The  person  who  is  sent  there,  if  he  has  means  of  his 
own,  is  required  to  pay  a  small  amount;  if  he  has  not  money,  the 
mill  pays  what  it  costs  to  keep  the  employee  there  until  he  is  re- 
covered. All  these  mills  besides  this  are  insured,  and  this  is  an 
extra  expense  to  them.  That  is  merely  an  incident  of  one  indus- 
try, which  has  other  expenses  besides  insurance. 

When  we  get  the  returns  from  this  investigation,  we  shall  have 
some  idea  of  what  the  present  cost  of  the  injuries  in  Massachusetts 
is.     And  then  from  our  returns  on  the  present  number  of  acci- 


19 

dentSy-jpre  shall  have  some  basis  for  determining  what  would  be 
the  cost  to  these  various  industries  of  covering  all  accidents, — I 
mean  the  approximate  cost.  Of  course,  it  seems  to  me  that  you 
cannot, — and  all  other  countries  which  have  been  in  this  thing 
have  found  it  so, — ^you  cannot  estimate  accurately  what  the  cost 
is  going  to  be.  The  only  way  you  can  find  out  anywhere  nearly 
what  the  cost  is  going  to  be  is  by  trying  it.  But  you  can  give  a 
fair  guess  at  it.  That  is  all  you  can  do.  The  thing  which  worries 
me  more  than  anything  else  about  the  whole  situation  in  Massa- 
chusetts— and  Mr.  Dickson  and  Mr.  Boyd  have  already  called 
attention  to  it— is  the  effect  of  this  thing  on  the  small  employer. 
It  is  not  going  to  hurt  the  large  manufacturer,  the  man  with  a 
large  plant  and  a  large  number  of  employees,  very  much,  whatever 
law  you  pass,  because  he  is  in  strong  enough  condition  to  handle 
it.  The  smaller  employer  is  going  to  be  very  seriously  affected. 
If  the  things  doubles  or  trebles  the  present  liability  which  he  has, 
it  is  going  to  be  a  very  serious  thing  for  a  great  many  manufact- 
urers in  Massachusetts,  and  that  is  a  thing  which  we  have  got  to 
take  into  account.  We  have  had  meetings  all  throughout  the 
State,  some  of  them  very  well  attended  and  some  not.  In  Fall 
River  especially,  which,  as  you  know,  is  a  great  manufacturing 
centre,  we  found  that  the  representatives  of  the  employees  were 
not  well  posted  exactly,  but  were  quite  famiUar  with  the  idea 
of  a  compensation  act.  My  explanation  of  it  is  that  in  Massachu- 
setts, and  especially  in  Fall  River,  there  are  a  good  many  Enghsh- 
men  who  are  famiUar  with  what  has  been  done  in  England;  but 
we  found  there  that,  when  they  spoke  of  a  compensation  act,  they 
really  knew  what  they  were  talking  about.  In  other  places  it  was 
merely  a  general  very  vague  idea  which  they  had  in  their  minds. 

The  Chairman:  I  believe  Mr.  Schutz  has  been  appointed  by 
the  Governor  to  attend  this  meeting. 

Mr.  Schutz:  Mr.  Chairman  and  gentlemen,  Connecticut  is 
in  very  much  the  same  position  as  Massachusetts,  except  we  have 
not  gone  as  far.  In  1907  we  had  a  special  committee  appointed, 
consisting  of  one  representative  of  labor,  one  representative  of 
the  employers,  and  a  lawyer,  which  was  instructed  to  recommend 
to  that  session  of  the  Legislature  of  1907  a  modification  of  the 
employers'  liability  laws.  This  Commission  at  once  realized  what 
a  tremendous  task  was  before  it,  and  got  no  further  than  making 
a  preliminary  report  to  that  session,  and  was  continued  for  two 
years.     It  made  a  report  to  the  session  of  1909,  but  that  report 


20 

was  a  divided  report  to  this  extent:    The  representative  of  labor 
and  the  representative  of  the  employing  class  would  have  been 
glad  to  recommend  a  Compensation  Act.     The  lawyer  felt  that 
there  were  constitutional  difficulties  which  rendered  this  very 
difficult,  and  also  that  it  was  perhaps  not  applicable  to  the  then 
existing  conditions.     Furthermore,  the  representative  of  labor  felt 
that  the  fellow-servant  rule  should  be  abrogated  in  toto,  and  that 
contributory  negligence  should  be  abolished,  and  this  the  other 
two  members  of  the  Commission  disapproved,  and  therefore  they 
did  unite  in  recommending  a  bill  which  is  a  declaration  of  the 
existing  law  of  employers'  liability,  and  also  changed  the  law  with 
reference — or  would  have  changed  the  law  in  reference — to  the 
fellow-servant  rule  on  railroads,  and  also  the  matter  of  notice. 
It  was  a  mild  form  of  Employers'  Liability  Law,  which  would  make 
it  rather  more  difficult  for  the  common  law  defences  which  have 
been  in  existence  and  are  in  existence  to-day  in  Connecticut  to 
be  applied.     So  that  bill,  which  was  recommended  and  which  is 
contained  in  the  report  of  that  Commission  of  January,  1909, 
failed  of  passage,  and  at  present  there  is  no  Commission  actively 
in  existence.     In  the  last  campaign  both  the  principal  parties  and, 
in  fact,  all  three  parties  represented  favored  a  Workmen's  Com- 
pensation Act,  or  an  Employers'  Liability  Law,  and  they  also 
all  unite  in  advocating  the  abrogation  of  the  five-thousand-dollar 
limit  for  death  in  case  of  accident.     And  certainly  the  people  are 
very  vitally  interested  in  this  question. 

What  has  been  said  with  regard  to  Massachusetts  is  true  of 
Connecticut.  Our  industries  there  are  largely  manufacturing  of 
the  non-extra-hazardous  class,  and  the  small  employer  of  labor 
must  be  considered.  There  is  a  growing  sentiment,  however, 
especially  among  the  employers,  that  compensation  should  be  the 
basis,  and  not  liability.  We  have  had  numerous  meetings  of 
manufacturers  and  other  associations,  and  there  is  no  doubt  about 
it  that  the  coming  Legislature  will  have  before  it  many  bills  based 
on  compensation  and  also  in  amendment  of  the  existing  liability 
laws.  We  must  not  forget,  however,  that  the  Governor-elect,  our 
former  chief  justice,  has  written  the  unanimous  opinion  of  the 
court  in  the  case  of  Hoxie  v.  N.  Y.,  N.  H.  &  H.  R.R.  Co.,  82  Conn. 
352,  which  holds  that  the  Federal  Act  of  1908  is  unconstitutional 
with  regard  to  Connecticut,  in  so  far  as  it  attempts  to  force  upon 
a  State  court  jurisdiction  of  a  case  brought  under  the  Federal  act. 
And  the  court  goes  on  to  say  in  addition:  "The  provision  of  sec- 


21 

tion  5  of  the  act  that  any  contract  between  an  interstate  carrier 
and  any  of  its  employees  in  such  business,  intended  to  enable  it 
to  exempt  itself  from  any  of  the  Hability  created  by  the  act 
shall  to  that  extent  be  void,  is,  in  our  opinion,  in  violation  of  the 
Fifth  Amendment  of  the  Constitution  of  the  United  States  as 
tending  to  deprive  the  parties  to  such  a  contract  of  their  liberty 
and  property  without  due  process  of  law."  So  that  practically 
that  decision  holds  the  act  unconstitutional  on  various  grounds, 
but  the  only  necessary  point  was  that  a  State  court  could  not  be 
compelled  to  take  jurisdiction  of  an  action  brought  under  the  act. 
While  I  have  no  authority  to  speak  for  any  one  except  myself 
and  certain  gentlemen  who  are  vitally  interested  in  the  matter, 
I  do  feel  strongly  that  we  shall  not  get  far  by  any  tinkering  with  the 
common  law  defences,  but  that  we  must  have  an  act  which  goes 
to  the  very  root  of  the  matter  and  makes  the  question  of  compensa- 
tion the  basis,  and  not  the  question  of  legal  fault.  And,  further- 
more, that  the  most  satisfactory  plan,  so  far  as  I  have  been  able 
to  see  any  outUne,  is  the  act  recommended  by,  or  at  least  which 
is  embodied  in  the  report  of,  the  Illinois  Commission,  and  which, 
I  understand,  was  drafted  by  Mr.  Harper.  This  report  contains 
also  a  very  excellent  dissertation  on  the  subject  of  constitutionahty 
of  compensation  acts,  and  will,  I  think,  be  very  helpful  to  this 
Conference.  That  law,  as  I  understand  it,  contains  a  choice  of 
remedies.  That  is,  it  allows  an  employee  to  elect  whether  he  will 
take  advantage  of  the  Compensation  Act  or  whether  he  will  simply 
abide  by  the  common  law  or  the  statutory  law  of  employers' 
Hability.  This  scheme,  it  seems  to  me,  is  the  one  which  will  be 
ultimately  adopted.  And  further  than  that,  I  think  that  the 
German  system  has  an  advantage  over  the  English  in  that  com- 
pulsory insurance  rather  than  compulsory  compensation  is  the 
more  satisfactory,  and  will  be  cheaper  in  its  appHcation.  For 
that  reason  Mr.  Cheney,  who  is  making  a  special  study  of  this 
subject,  favors  a  State  plan  of  insurance  which  shall  be  based 
upon  the  German  system,  by  which  this  insurance,  or  the  risk, 
which  is  incident  to  a  compensation  act,  shall  be  borne  under  a 
plan  which  has  the  approval  of  the  State,  and  if  the  employee 
entitled  to  take  advantage  of  it  elects  as  to  this,  and  can  make 
that  election  at  the  time  the  employment  is  entered  into,  it  then 
cannot  be  said,  if  the  State  approves  it,  that  it  is  unfair  to  him. 
And  I  very  much  hope  that  matter  will  be  considered  further  in 
this  Conference.    Certainly,  the  cost  of  the  insurance  or  the  cost 


22 

of  the  risk,  as  has  been  shown  by  the  New  York  experience,  will 
bear  very  hard  upon  Connecticut,  and,  while  we  are  a  small  State, 
we  have  great  manufacturing  interests,  and  we  cannot  afford  to 
compete  with  the  other  States  unless  they  practically  have  the 
same  risks  that  we  do,  and  therefore  we  are  strongly  in  favor  of 
some  uniform  act  that  shall  make  this  burden,  which,  we  beUeve, 
should  be  carried  as  an  element  in  the  cost  of  manufacture,  rest 
uniformly  upon  the  manufacturers  of  all  the  different  States. 

I  am  authorized  to  say  that  one  manufacturing  concern  in 
Connecticut,  a  very  large  one,  that  employs  some  thirty -five 
hundred  men,  has  during  the  course  of  forty  years  carried  its  own 
insurance.  It  has  never  contested  a  single  case  of  accident.  It  has 
paid  all  the  expense  incident  to  the  injury  to  its  employees.  It  is 
not  an  extra-hazardous  line  of  manufacture,  but  that  concern 
figures  that  its  expense  is  less  than  one-quarter  of  one  per  cent, 
on  its  general  pay-roll. 

The  Chairman  :  We  shall  be  pleased  to  hear  from  Mr.  Bailey, 
the  Chairman  of  the  Committee  from  the  Conference  of  Commis- 
sioners on  Uniform  State  Laws,  on  this  subject. 

Mr.  Boyd:  May  I  be  allowed  to  amend  my  statement? 

The  Chairman:  I  think  so. 

Mr.  Boyd:  The  Ohio  Commission  has  three  experts  working 
in  Cuyahoga  County  with  a  view  to  determining  the  history  of 
partial  injuries,  total  disability,  and  the  payments  to  married 
men  killed  during  three  years,  1906,  1907,  and  1908,  with  a  view 
to  corroborating,  if  possible,  the  results  of  the  New  York  Com- 
mission's investigation  in  Erie  County  and  in  New  York  City, 
and  also  the  investigations  of  the  Russell  Sage  Foundation  in 
Pittsburg,  so  that,  when  we  come  up  to  the  Legislature  and  ap- 
pear there  to  argue  our  position,  we  may  have  not  only  the  statis- 
tics of  the  New  York  Commission  and  the  Russell  Sage  Foundation, 
but  also  our  own  statistics  along  one  important  line  of  action. 

Now  another  point:  The  New  York  Commission's  report 
showed  that  out  of  414,000  injuries  there  were  payments  made  in 
52,000,  or  one  in  eight.  Now  we  had  before  us  in  Cleveland  a 
gentleman  who  represented  the  ^tna  LiabiUty  Insurance  Com- 
pany, and  out  of  the  history  of  sixty-five  thousand  and  some  hun- 
dred accidents  the  average  payments  were  only  six  in  a  hundred. 

Mr.  Bailey:  Mr.  Chairman  and  gentlemen,  the  American 
Bar  Association  conceived  the  idea  that  uniform  legislation  was 
desirable,  and  they  instituted  a  movement  in  which  the  Governors 


of  the  different  States,  acting  by  the  consent  of  the  Legislatures, 
appointed  commissioners  to  meet  and  deal  with  the  question  of 
uniform  legislation.  The  matter  began  somewhat  slowly,  but 
for  the  last  two  years  something  like  forty,  I  think,  out  of  the 
entire  number  of  States,  have  had  such  commissioners.  Their 
duty  is  in  each  case  to  attend  a  Conference  of  Commissioners, 
held  usually  once  a  year,  in  which  the  different  States  are  repre- 
sented, and  the  question  of  uniform  legislation  worked  over. 
As  most  of  you  know,  in  the  last  ten  years  a  good  deal  has  been 
accomplished  in  the  way  of  uniform  legislation.  In  1908  the  Uni- 
form Negotiable  Instrimaents  Act  was  formulated  and  approved, 
and,  when  an  act  is  put  in  shape  by  the  Conference  of  Commis- 
sioners, then  they  ask  the  American  Bar  Association  to  indorse 
it  and  give  iL.its  support,  and  then  it  goes  before  the  Legislatures. 
I  think  a  majority  of  the  States  have  adopted  the  Negotiable  In- 
struments Act.  What  I  have  said  of  that  is  true  of  the  Uniform 
Bill  of  Lading  Act,  the  Uniform  Stock  Transfer  Act,  and  some 
other  uniform  acts.  Last  summer  at  Chattanooga  the  question 
was  brought  up  of  a  Uniform  Workingmen's  Compensation  Act, 
and  a  special  committee  was  appointed  of  five  members  to  meet 
and  consider,  first,  as  to  the  desirability  of  such  a  law,  and, 
second,  if  desirable,  prepare  and  submit  next  year  a  draft  of  a 
uniform  law.  The  president  of  the  Conference  appointed  a 
committee  of  seven.  Now  that  committee  met  in  Philadelphia 
on  the  22nd  of  October,  and  we  had  five  out  of  the  seven  members 
present.  We  were  unanimously  of  the  opinion  that  it  was  de- 
sirable that  there  should  be  a  uniform  workingmen's  compensa- 
tion law,  and  that  we  should  undertake,  with  all  the  help  we  could 
get,  to  frame  a  law  to  be  submitted  at  the  next  Conference,  which 
will  be  held  probably  next  August.  So  we  are  here  on  invita- 
tion to  learn  from  you  what  is  being  done  and  to  assist,  so  far 
as  we  may,  in  what  you  are  doing.  The  committee  made  me 
chairman,  and  made  Mr.  Terry,  of  New  York,  secretary.  I 
hope  Mr.  Terry  will  be  here  before  we  get  through. 

The  committee  has  examined  the  New  York  acts  with  some 
care.  We  spent  a  day  on  that  at  Philadelphia.  We  considered 
a  draft  of  a  law  that  was  introduced  in  Massachusetts  some  three 
or  four  years  ago,  and  have  discussed  the  subject  generally. 
Since  the  22nd  of  October,  when  we  met  in  Philadelphia,  at  the 
suggestion  of  Mr.  Lowell,  I  have  tried  to  get  some  light  on  the 
constitutional  questions,  and  have  invoked  the  aid  of  Professor 


24 

Samuel  Williston,  of  the  Harvard  Law  School.  Mr.  Williston  is 
one  of  the  commissioners  from  Massachusetts  on  uniform  laws. 
He  was  preceded  by  Dean  Ames,  and  on  his  death  Mr.  Williston 
was  appointed  in  his  place  one  of  the  three  commissioners  of  Massa- 
chusetts. Many  of  you  know  him,  because  he  was  employed  by 
the  Conference  of  Commissioners  to  draft  the  Uniform  Sales  Act, 
and  published  a  book  on  that  subject.  He  has  very  kindly  spent 
more  or  less  time  for  a  week  or  two,  and  has  given  me  an  opinion  in 
writing,  which  I  have  brought  here,  and  shall  be  glad  to  read  to 
you  and  give  you  the  benefit  of, — not  at  this  moment,  but  before 
we  get  through.*  He  discussed  the  same  questions  that  were 
sent  out  in  New  Jersey,  and  I  think  that  his  views,  his  review 
of  the  cases,  and  his  citation  of  some  of  the  recent  cases  will  be 
helpful  on  those  questions.  They  say  fools  rush  in  where  angels 
fear  to  tread.  Since  the  22nd  of  October  I  have  been  working 
on  this  thing,  and  have  framed  an  act  somewhat  along  the  con- 
stitutional lines  suggested  by  Mr.  Williston,  following  in  some 
points  the  New  York  act,  following  in  some  points  the  English 
act.  The  Illinois  act  I  did  not  have  before  me,  but,  from  what  was 
said  of  it,  I  seem  to  have  copied  some  things  out  of  that.  That 
bill  is  simply  brought  here  for  a  sub-committee  or  for  the  whole 
body  to  consider,  as  to  whether  it  has  any  merits.  Being  some- 
thing that  is  actually  in  shape  easier  to  revise  than  to  form 
something  entirely  new.  I  am  happy  to  say  that  Dean  Wigmore 
is  here,  and  the  rest  of  the  committee  are  all  interested. 

We  have  no  authority  to  speak  for  our  committee  officially, 
but  are  here  to  learn  what  we  can  and  to  make  recommendations 
to  our  committee  in  the  light  of  what  occurs  here,  and  I  will  say 
this, — that  I  think  our  recommendations  can  be  helpful  in  the  gen- 
eral work,  because,  when  we  meet  next  year,  if  we  can  go  before 
the  Conference  with  a  uniform  act  which  has  been  worked  out 
by  a  body  such  as  this,  the  commissioners  can  do  a  great  deal, 
with  the  aid  of  the  American  Bar  Association,  in  getting  such  a 
law  adopted  in  the  various  States.  And  that,  I  think,  is  our  chief 
fimction  and  our  chief  help  to  you, — to  make  some  suggestions 
here,  as  far  as  we  may.  We  very  much  hope  that  a  law  will  be 
worked  out  which  we  can  recommend  to  the  commissioners  as 
being  a  proper  bill  for  a  uniform  law. 

Mr.  Gillette:  When  are  the  various  Commissions  represented 
here,  to  report?    I  would  like  to  have  that  in  the  record. 

♦See  Appendix  "B." 


26 

Mr.  Lowell:  The  Massachusetts  Commission  is  to  report  by 
the  second  Wednesday  in  January. 

Mr.  Boyd:  The  Ohio  Commission  is  required  to  report  to  the 
next  Legislature,  which  assembles  the  first  of  January,  about  the 
2nd  of  January. 

Mr.  Gillette:  Minnesota  the  same  time. 

A  Member:  New  Jersey  the  first  week  in  January. 

The  Chairman  :  When  does  the  Federal  Commission  report? 

A  Member:  December  of  next  year. 

The  Chairman:  Mr.  Charles  P.  Neill,  will  you  speak  next? 

Mr.  Neill:  Mr.  Chairman,  I  do  not  represent  any  Commission, 
and  the  only  thing  I  can  say  is,  in  order  to  make  available  for  the 
various  State  Commissions  all  the  European  experience,  we 
have  been  working  for  the  past  year  or  two- on  a  voluminous 
report,  and  we  shall  have  in  print  within  the  next  few  weeks 
a  report  of  over  twelve  hundred  pages,  giving  the  laws  and  all 
the  experience  and  all  the  statistical  material  available,  up  to 
this  time,  of  the  principal  European  countries.  It  will  cover 
Austria,  Belgium,  France,  Denmark,  Germany.  We  have  got 
down  to  the  I's,  but  that  includes  all  the  principal  countries  of 
Europe  whose  experience  is  important.  I  have  here  now,  for 
Mr.  Mercer's  use,  one-half  of  the  report  in  page  proof.  There 
may  be  some  delay  in  binding  the  report,  but,  if  the  various 
members  here  will  give  in  their  names  to  the  secretary,  I  shall  be 
very  glad  to  take  them  and  have  it  sent  in  stitched  form  to  all 
those  who  care  for  it  the  moment  it  is  available  for  distribution 
in  that  form.  The  report,  as  I  say,  covers  all  the  available  data 
in  all  the  European  countries  that  are  of  any  consequence.  Now 
we  also  have  one  or  two  formal  supplemental  reports  which  will 
be  coming  out  in  the  Bulletin  during  the  next  month  or  two. 
We  shall  be  very  glad  to  send  those  to  you.  I  would  also  like 
to  suggest  that,  since  the  constitutional  question  is  a  very  vital 
one  and  will  be  discussed  at  length,  Mr.  Mercer,  the  chairman, 
has  prepared  a  very  extensive  brief  on  the  subject,  and  I  suggest 
that  those  interested  secure  from  Mr.  Mercer  a  copy  of  that 
brief  also. 

Mr.  Wainwright:  Mr.  Chairman,  right  along  that  line  refer- 
ence has  been  made  to  that  very  excellent  opinion  of  Mr.  Harper's 
in  the  Illinois  report,  and  it  seems  to  me  those  who  have  not  seen 
that  ought  to  have  the  report  of  the  Ilhnois  Commission  in  their 
hands  early  in  this  Conference,  if  the  secretary  can  get  that. 


26 

Mr.  Gillette  :  I  would  like  to  ask  Mr.  Neill  if  he  knows  whether 
the  reports  made  by  our  consuls  are  going  to  be  published  by  the 
Department  of  State  and  made  available.  I  think  they  are  one 
of  the  best  contributions  to  the  subject  that  has  been  made. 

At  the  Washington  meeting  a  committee  was  appointed  to 
confer  with  the  Secretary  of  State.  They  have  been  coming  in  for 
the  last  six  months,  and  I  don't  know  if  the  last  ones  are  in  now; 
but  I  have  seen  some  of  them,  and  they  are  most  valuable  con- 
tributions, but  1  am  afraid  we  cannot  get  hold  of  them. 

Mr.  Neill:  The  trouble  is  that  they  are  not  on  any  com- 
parable basis.  You  will  get  a  lot  of  undigested  matter  from 
countries  not  on  a  comparable  basis.  Up  to  the  end  of  1907  we 
had  everything,  I  think,  that  can  be  gotten  from  any  source. 
Not  only  that,  but  Mr.  Dawson  was  sent  to  Europe,  and  has 
secured  exceedingly  valuable  data  showing  the  cost  in  Europe 
under  their  system  formerly  and  under  the  present  system. 
That  will  be  available  in  a  few  weeks  in  page  proof.  But  I  will 
take  that  up  as  soon  as  I  get  back,  and,  if  there  is  anything  avail- 
able in  those  reports,  they  ought  to  be  published,  and  unques- 
tionably will  be  before  the  report  is  made. 

Mr.  Gillette:  These  reports  consist  of  interviews  with  em- 
ployers and  employees,  insurance  companies  and  others,  as  to 
the  difficulties  and  defects  which  have  developed  in  the  operation 
of  the  different  systems  in  the  various  countries.  They  are  im- 
partial, absolutely.  The  Secretary  of  State  has  very  kindly 
furnished  me  with  a  copy  of  nearly  all  of  them,  and  I  think  they 
are  extremely  valuable.  They  would  make  a  large  volume, 
I  should  say  two  thousand  printed  pages. 

Mr.  Neill:  Well,  I  will  tell  you  what  I  will  do.  I  will  make  a 
note  of  that,  and,  when  I  get  back,  I  will  take  it  up.  If  they  are 
not  going  to  publish  them,  we  can  probably  publish  them  our- 
selves. If  you  will  write  in  a  letter  to  me  asking  about  them, 
I  will  take  it  up  the  minute  I  get  back. 

Mr.  Gillette:  The  questions  were  formulated  by  the  State 
Department,  and  are  very  pertinent.  When  I  was  on  the  other 
side,  I  went  into  our  foreign  consulates,  and  in  almost  every  case 
found  the  officials  at  work  on  them, — the  questions  relating  to 
the  effect  of  the  laws  on  maUngering,  exaggeration  of  injuries,  and 
the  trouble  they  have  had  with  doctors,  with  the  ambulance 
chasers,  and  all  the  questions  which  flow  out  of  the  operation  of 
such  an  act.    The  opinion  of  the  workmen  as  to  whether  they 


27 

are  satisfied  with  the  scale  of  compensation,  the  difficulties  which 
the  insurance  companies  have  had  with  the  administration  of  the 
act,  and  all  those  questions  as  a  rule  are — well,  I  say  they  are 
impartial.  I  mean  this,  that  they  are  not  colored  by  the  consul. 
They  give  exact  replies  of  the  employers  and  the  exact  repUes  of 
the  employees  and  the  insurance  companies,  and  give  one  a  most 
clear  and  vivid  picture  of  the  satisfaction  or  dissatisfaction  which 
the  various  elements  of  society  have  with  the  various  laws. 

Mr.  Doten:  Mr.  Chairman,  if  I  might  be  permitted  to  say 
a  word  in  regard  to  these  consular  reports,  I  was  in  Washington 
about  two  weeks  ago  and  spent  about  a  day  looking  over  these 
reports  in  the  Consular  Bureau,  and  I  learned  from  the  officers 
in  charge  that  there  was  no  intention  whatever  on  the  part  of 
that  Bureau  to  publish  these  reports.  They  will  remain  buried 
in  that  Bureau  unless  we  dig  them  out  in  some  way.  I  was  very 
much  impressed  with  the  straightforward  character  of  them,  and 
with  the  human  element,  so  to  speak.  They  got  right  back  to 
the  person  who  made  the  reports:  it  was  direct,  and  it  was  very 
valuable  in  that  respect.  Many  of  these  things  were  just  what 
we  would  expect  to  find.     I  agree  with  what  Mr.  Gillette  said. 

Mr.  Schutz  :  May  I  add  one  word  in  that  regard?  I  happened 
to  examine  the  one  in  Paris  and  the  one  in  Berlin.  In  Paris  the 
statistics,  as  far  as  the  employers  were  concerned,  were  secured 
by  the  secretary  of  the  Chamber  of  Commerce,  and  would  be  in- 
tensely valuable  in  making  an  argument  on  this  bill,  because  they 
give  the  practical  experience  of  the  employers,  the  insurance 
companies  and  the  employees. 

The  Chairman:  I  examined  the  consular  reports  myself  this 
summer  in  Christiania,  Stockholm,  Denmark,  Berlin,  Paris, 
London,  two  or  three  more  places,  and  they  are  the  best  line  of 
information,  it  seems  to  me,  of  anything  there  is  on  the  practical 
working  of  these  laws.  You  will  find  what  the  chronic  objections 
are  on  behalf  of  labor,  the  employers,  insurance  companies;  you 
will  find  some  very  valuable  suggestions  in  nearly  every  report 
as  to  the  amendments  which  they  would  make  in  their  law.  I 
found  in  Denmark  that  there  had  been  a  consular  report  issued 
purporting  to  cover  the  report  of  the  consul  there,  but  on  com- 
paring it  with  the  report  I  found  that  some  clerk  or  somebody 
had  taken  the  report  and  blue-pencilled  a  considerable  portion 
of  it,  and  published  that  which  did  not  amount  to  a  great  deal. 
So  I  got  a  copy  of  that  report  in  full,  thinking  that  perhaps  they 


28 

were  going  to  publish  the  other  in  the  same  way,  but,  if  they  are 
not  going  to  publish  them,  certainly  some  department  ought  to. 

Mr.  Gillette:  I  suggest  that  the  chairman  of  the  meeting  is 
the  one  to  write  Mr.  Neill  in  a  formal  way  and  request  him  to 
publish. 

Mr.  Doten:  I  will  say,  Mr.  Chairman,  in  regard  to  that  edit- 
ing that  the  department  is  very  fearful  that  any  expression  of 
opinion  on  the  part  of  the  consular  officers  will  meet  with  criti- 
cism of  foreign  governments,  so  they  have  gone  over  them  very 
carefully,  and  blue-pencilled  everything  which  had  the  sHghtest 
evidence  of  a  personal  bias. 

The  Chairman:  There  may  be  some  objection  to  their  allow- 
ing them  to  be  published  in  the  part  you  mention. 

Mr.  Bailey:  Just  a  single  word  as  to  what  is  in  print  on  this 
subject.  At  a  meeting  of  the  International  Law  Association  held 
in  London  in  August  a  day  was  given  up  to  the  discussion  of  this 
subject  of  a  Workingmen's  Compensation  Act,  and  a  considerable 
part  of  the  day  was  given  to  the  reading  of  a  paper  which  was 
presented  by  Sir  John  Hill,  of  Liverpool,  giving  some  defects  in 
the  present  English  law,  and  contrasting  it  somewhat  with  the 
European  laws  on  the  Continent.  I  have  one  copy  of  that.  I 
think  Mr.  Lowell  has  one  copy,  which  I  gave  him.  That  will  be 
in  print  a  little  later  and  distributed  to  all  the  members  of  the 
International  Law  Association.  It  is  somewhat  interesting,  show- 
ing how  they  view  their  present  law.  Mr.  Hill  has  been  rather — 
I  understand,  from  the  beginning,  rather  a  critic  of  their  law,  and 
he  points  out  some  things  which  are  interesting  and  gives  some 
statistics  which  are  interesting.  Of  course,  he  is  not  troubled 
with  the  constitutional  questions,  and  so  that  does  not  help  us  so 
much. 

A  Member:  I  have  an  extract  here  of  the  replies  of  the  consul 
in  London.  If  any  one  cares  to  see  it,  he  can  have  it  to  look  at. 
In  my  judgment  it  is  not  very  deep,  but  it  does  reflect  the 
general  attitude  of  the  employer  and  the  workman  and  the 
public. 

The  Chairman:  I  did  not  go  to  a  single  consular  office  but 
what  I  found  them  ready  to  give  me  any  information  they  could, 
and  I  think  that  every  consul  that  I  met,  and  deputy  consul,  when 
the  consul  was  away,  told  me  that  he  was  the  most  interested 
in  that  of  any  subject  that  he  looked  up.  Practically  every  one 
of  them  was  most  enthusiastic  over  it. 


29 

Mr.  Gillette:  There  was  one  remark  made  to  me  by  several 
consuls.  "I  suppose,  when  our  reports  go  back  to  the  Depart- 
ment of  State,  they  will  be  pigeon-holed;  and  all  our  work  goes 
for  nothing." 

The  Chairman:  I  only  went  to  one  capital  in  Europe  where  I 
did  not  find  a  report,  and  that  was  down  in  Switzerland,  and  I 
suppose  that  Switzerland  has  what  the  government  understood  not 
to  be  a  Workmen's  Compensation  Act,  although  it  has  some- 
thing of  the  features.  But  I  did  find  some  fellow  from  America 
had  written  to  the  consul  there  some  seven  years  ago  about  the 
subject,  and  he  went  and  got  down  the  letter  and  got  the  docu- 
ments in  German  and  French,  and  translated  them  into  English, 
and  for  two  hours  he  sat  and  told  me  about  the  legislation  they 
had,  and  what  the  vote  had  been  on  the  last  law,  and  the  whole 
situation,  and  ended  up  by  telling  me  they  had  spent  two  or  three 
days  investigating  it,  and  they  never  even  got  thanks  for  it. 
Now  I  think  we  have  reached  the  point,  gentlemen,  where  we 
have  been  around  for  all  of  these  reports.  What  is  the  further 
pleasure  of  the  Conference? 

Mr.  Gillette:  I  move  you  that  we  adopt  the  order  of  dis- 
cussion as  prepared  by  the  Massachusetts  Commission. 

The  Chairman:  The  motion  is  that  we  start  with  the  dis- 
cussion in  the  order  of  this  pamphlet. 

Mr.  Wainwright:  I  suggest  for  the  record,  that  these  ques- 
tions be  now  put  in  the  record: — 

1.  What  employments  shall  the  act  cover? 

2.  Shall  all  injuries  be  covered,  irrespective  of  negligence? 

3.  Shall  all  persons  engaged  in  such  employments  be  included? 

4.  Shall  compensation  be  paid  in  a  lump  sum  or  in  instalments? 

5.  Amount  and  duration  of  compensation? 

6.  Length  of  waiting  period? 

7.  Shall  dependants  include  aliens  and  illegitimate  relations? 

8.  Shall  employees  contribute? 

9.  Shall  it  be  permissible  for  employers  to  substitute  voluntary  schemes? 

10.  Method  of  determination  of  controversies? 

11.  Nature  of  scheme:  Compensation,  insurance,  or  State  insurance,  (a) 
Voluntary,  (6)  Compulsory? 

12.  Repeal  of  other  laws? 

13.  Constitutionality? 

Might  we  not  adopt  some  rules,  in  considering  these  questions, 
limiting  the  time  of  discussion  to  each  question  and  the  time  of 
discussion  by  each  individual?     For  example,  might  we  not  allot 


30 

one  hour  to  each  question,  and  at  the  end  of  that  tune,  if  anybody 
desires  to  further  protract  the  discussion  on  that  particular  topic, 
we  can  put  it  to  a  motion,  but,  if  we  are  agreed  we  have  exhausted 
the  topic  by  that  time,  then  the  chairman  can  put  the  motion. 

That  was  the  idea  we  adopted  at  our  commission  meetings  where 
we  had  thirteen  people.     It  worked  very  well. 

The  Chairman:  The  question  is  on  the  original  motion  by 
Mr.  Gillette,  that  we  take  up  these  questions  in  the  order  in 
which  they  are  submitted  by  the  Massachusetts  Commission. 

Mr.  Wainwright:  So  as  to  raise  the  question,  I  move  that  we 
proceed  to  the  discussion  of  these  questions,  and  limit  the  dis- 
cussion to  one  hour  to  each  proposition,  unless  a  majority  of 
those  present  shall  decide  to  the  contrary.  I  make  that  as  a 
substitute. 

The  Chairman:  Any  remarks? 

Mr.  Smith:  It  seems  to  me  it  would  be  necessary  to  give  every- 
body a  chance.  I  would  ask  Mr.  Wainwright  to  insert  in  his 
motion  the  provision  that  five  minutes  shall  be  the  limit  for  each 
speaker. 

The  Chairman:  Bo  you  accept  that,  Mr.  Wainwright? 

Mr.  Wainwright:  Yes.  Some  of  these  topics  won't  take  that 
length  of  time. 

The  question  was  then  put,  and  the  motion  prevailed. 

The  Chairman:  We  are  now  up  to  the  first  topic,  and  it  is 
twelve  twenty-five.  Do  you  want  to  discuss  till  one  thirty,  or 
do  you  want  to  adjourn? 

Mr.  Dickson:  I  move  that  the  morning  session  continue  until 
one  thirty,  and  that  we  then  adjourn  until  two  thirty. 

The  motion  prevailed. 

Mr.  Doten:  I  would  Hke  to  raise  the  question,  Mr.  Chairman, 
as  to  how  much  of  these  proceedings  we  shall  have  our  stenog- 
rapher take? 

I  felt  that  we  should  need  a  stenographer,  and  so  on  the  au- 
thority of  the  Massachusetts  Commission  I  have  engaged  a  com- 
petent stenographer  to  take  the  proceedings,  and  we  are  in 
position  to  make  any  number  of  copies. 

Mr.  Dickson:  I  move  that  the  cost  of  the  stenographer's  bill 
be  assessed  against  all  the  Commissions  represented. 

The  Chairman:  How  about  the  Committee  on  Uniform  Laws? 

Mr.  Bailey:  The  committee  may  be  included. 

The  Chairman:   And  the  National  Commission? 


31 

Mr.  Packer:  Yes,  Mr.  Cease  thinks  we  can  come  in  on  this. 

The  Chairman:  And,  Mr.  Neill,  how  about  that? 

Mr.  Neill:  I  would  be  delighted  if  the  auditor  would  allow 
me  to,  but  I  know  he  won^t. 

The  question  was  then  put,  and  the  motion  prevailed. 

Mr.  Dickson:  I  move  the  matter  of  printing  be  referred  to 
the  secretary,  with  power. 

The  motion  was  seconded,  and  prevailed. 

Mr.  Dickson:  Mr.  Chairman,  Mr.  Bailey  suggested  we  start 
with  the  question  of  constitutionality.  I  think  he  is  right.  I 
think  New  York  found  that  they  could  not  constitutionally  enact 
any  legislation  except  by  resorting  to  the  police  power  of  the 
State. 

The  Chairman:  I  am  bound  to  stick  to  the  first  one,  unless 
we  have  a  motion  to  the  contrary. 

Mr.  Bailey:  I  move  we  take  up  thirteen. 

Mr.  Lowell:  I  object  to  that  motion,  because  Dean  Wigmore 
is  not  here,  who  knows  more  about  it,  probably,  than  any  one 
else. 

The  question  was  then  put,  and  the  motion  was  lost. 

Number  1.    What  Employments  shall  the  Act  cover? 

Mr.  Bailey:  Mr.  Chairman,  we  are  under  number  1,  but  we 
necessarily  under  that,  in  considering  what  employments  it  shall 
cover,  must  consider  the  question.  What  can  it  cover?  There  is 
a  case  in  178  Fed.  Rep.,  opinion  by  Judge  Sanborn,  in  which  he 
says  to  make  such  a  law  as  that  constitutional,  you  must  not 
separate  according  to  employments.  That  won't  go.  But  we 
must  make  it,  not  only  according  to  hazardous  employments,  but 
according  to  the  hazardous  positions  in  the  employment,  and  he 
has  a  long,  careful  opinion,  and  a  large  review  of  the  cases  upon 
that,  because,  he  says,  take  railroad  employees,  one  of  them  is 
working  a  typewriter  in  the  office,  and  you  cannot  make  the  same 
law  apply  to  that  employee  that  you  can  to  the  engine  driving, 
and,  if  you  undertake  to  do  it,  it  is  not  classification,  it  is  arbi- 
trary, and  won't  go. 

The  Chairman:  Mr.  Bailey,  have  you  read  the  decision  in 
the  United  States  Supreme  Court  in  218  U.  S.?  They  dispose 
of  some  of  his  difficulties. 

Mr.  Bailey  :  Professor  Williston  adverts  to  that  in  his  opinion. 


32 

I  have  not  had  time  to  read  that.  I  agree  that  Judge  Sanborn 
went  too  far,  but  it  does  seem  to  me  that  instead  of  picking  out 
a  certain  class  of  employments,  which  is  troublesome  in  any  event, 
(the  New  York  people  have  undertaken  to  do  it,  it  is  troublesome, 
certainly),  if  you  pick  out  and  make  the  law  apply  to  the  hazardous 
position,  that  is  one  of  inherent  danger,  and  make  it  apply  to 
that,  there  is  a  certain  advantage  in  doing  that.  In  that  way 
you, — instead  of  making  a  long  list  of  half  a  page  of  hazardous 
employments,  get  right  down  to  what  Judge  Sanborn  says  is 
important  (namely,  to  make  the  thing  apply  to  the  hazardous 
risks  of  the  hazardous  business),  and  you  can  do  it  in  a  short 
form  of  words.  There  is  a  certain  advantage  in  doing  that 
rather  than  trying  to  make  a  long  list  of  employments,  because 
I  do  think  that  the  reasoning  of  Judge  Sanborn  is  fairly  good, 
that  you  cannot  include  the  t3T)ewTiter  and  the  brakeman  in  the 
same  class.  You  have  got  to  have  something  which  really  gets 
down  to  the  gist  of  the  thing,  a^d  that  is  the  real  hazard  which  a 

man  undertakes. 

Mr.  Wainwright:  Would  not  that  become  entirely  a  matter 

of  judicial  construction,  and,  in  place  of  decreasing  our  litigation, 

wouldn't  we  be  much  deeper  in? 
A  Member:  Will  not  Professor  Wigmore  be  kind  enough  to 

give  us  his  view  of  the  Melton  case,  which  has  been  up  to  the 

Supreme  Court,  on  the  question  of  division  into  hazardous  and 

non-hazardous  occupations  in  any  particular  employment? 
Mr.  Wigmore:  I  am  afraid  I  cannot  take  up  your  time  with 

that. 

The  Chairman:  We  have  just  voted  down  the  question  of 

constitutionality.     Are  we  going  back  to  that,  or  are  you  going 

to  discuss  what  you  want  for  dangerous  employment? 

A  Member  :  It  seems  to  us  when  we  are  discussing  whether  one 

can  do  a  thing  or  not,  we  must  know  what  its  constitutionality  is. 
The  Chairman:  We  have  decided  that  once.    If  anybody  wants 

to  bring  that  up  and  you  are  willing  to  take  it  up  and  dispose  of 

it,  the  Chair  is  willing  to  put  it:  otherwise,  I  shall  rule  it  out  of 

order. 
Mr.  Lowell:  Mr.  Chairman,  our  idea  was  this:   every  single 

one  of  these  questions  brings  up  the  question  of  constitutionality. 

Now  it  seems  to  me  that  should  be  left,  as  we  have  decided,  to  the 

end.     Now  our  idea  was  to  find  out  all  along  here  what  we  wanted. 

Now,  supposing  it  be  that  we  all  come  to  the  agreement  that  we 


33 

want  all  employments  covered;  we  want  all  injuries  covered, 
irrespective  of  negligence;  we  want  a  compensation  of  three  thou- 
sand dollars  maximum.  We  want  a  two  weeks'  waiting  period. 
We  want  to  let  the  employer  have  a  way  of  contracting  out,  as 
they  have  in  England.  Then,  if  we  are  all  there  together, — ^then 
it  becomes  a  question  of  constitutionality,  and  you  can  decide  that 
thing  or  discuss  it,  and  get  as  near  to  a  decision  as  you  can,  much 
better  when  you  have  found  out  what  you  want.  Now  what 
we  want  to  get  together  on  now  is  what  we  want,  and  then  will 
come  the  very  serious  question  of  whether  we  can  have  it. 

The  Chairman:  I  think  that  is  the  situation.  Does  anybody 
want  to  speak  to  the  question  number  1? 

Mr.  Gillette:  Well,  just  to  bring  it  further  before  us,  I  move 
you  that  it  is  the  sense  of  this  Conference  that  all  employments 
should  be  covered. 

The  motion  was  seconded. 

The  Chairman:  You  mean  all  employments  or  all  employ- 
ments that  have  accidents? 

Mr.  Gillette:  All  employments  having  accidents. 

Mr.  Dickson:  What  is  the  distinction? 

The  Chairman:  There  is  a  good  deal.  Any  employment  that 
has  an  accident  is  dangerous,  as  far  as  that  particular  accident 
is  concerned. 

Mr.  Lowell:  Was  there  ever  an  employment  of  any  kind  that 
did  not  have  an  accident? 

The  Chairman:  Then  let  the  bill  cover  the  accident. 

Mr.  Gillette:  There  may  never  have  been  an  accident  until 
that  time,  but  the  moment  that  accident  happens,  then  that  par- 
ticular employment  becomes  dangerous.  That  is  Mr.  Mercer's 
point. 

The  Chairman:  Was  that  motion  seconded? 

The  motion  was  seconded. 

The  Chairman:  Are  you  ready  for  the  question? 

Mr.  Schutz:  Is  it  simply  cases  that  do  have  accidents?  I 
don't  know  any  case  that  does  not  have  accidents. 

The  Chairman:  What  I  had  in  mind  was  a  section  I  drew 
last  year,  and  I  will  read  that,  with  your  permission : — 

"Dangerous  employment  defined.  That  every  employer  in 
the  State  of  conducting  an  employ- 

ment in  which  there  hereafter  occurs  bodily  injury  to  any  of  the 
employees  arising  out  of  and  in  the  course  of  such  employment  is. 


34 

for  the  purpose  of  this  act,  defined  to  be  conducting  a  dangerous 
employment  at  the  time  of  that  occurrence  and  thereafter,  and 
consequently  subject  to  the  provisions  of  this  act  and  entitled 
to  the  benefits  of  it." 

Mr.  Dickson:  This  is  a  highly  technical  legal  question,  then, 
is  it  not? 

The  Chairman:  I  think  so. 

Mr.  Schutz:  Why  does  not  that  cover  every  possible  employ- 
ment? 

The  Chairman:  It  does. 

Mr.  Schutz:  Then  why  not  say,  ''cover  every  employment"? 

Mr.  Neill:  Have  not  you  done  just  what  Mr.  Dickson  sug- 
gests? Have  not  you  taken  a  very  simple  proposition  and  thrown 
in  an  unnecessary  legal  compHcation,  and  may  not  the  court  hold 
that  you  cannot  make  a  dangerous  employment  out  of  one  that  is 
not  in  the  ordinary  sense  of  language  considered  dangerous? 

The  Chairman:  That  is  another  constitutional  question. 

Mr.  Neill:  Are  not  you  throwing  in  a  possibility  there — 

The  Chairman  :  I  considered  all  those  questions,  and  put  it  in 
the  form  thought  best. 

Mr.  Neill:  May  I  ask  a  question,  then?  What  is  the  ad- 
vantage of  using  the  phrase  "shall  be  considered  dangerous  em- 
ployment," and  not  make  it  all  employments?  What  is  the  ad- 
vantage? 

The  Chairman  :  For  the  simple  reason  it  is  for  the  Legislature 
to  define  what  is  a  dangerous  employment.  My  idea  was  that 
you  define  them  as  dangerous  only  inasmuch  as  you  have  acci- 
dents. 

Mr.  Wainwright:  May  I  ask  if  this  motion  is  intended  to 
cover  every  field  of  employment,  from  farm  labor  to  domestic 
service? 

The  Chairman:  Where  there  are  accidents. 

Mr.  Alexander:  I  move  as  an  amendment  that  all  employ- 
ments be  covered,  and  my  reason  for  moving  the  amendment 
is  that,  as  the  chairman  has  indicated,  the  whole  question  is  one 
of  legality  and  constitutionafity.  Now,  if  we  pass  a  motion  that 
all  employments  shall  be  covered,  then  when  we  come  to  con- 
sider question  13,  re  the  constitutionality,  we  may  amend  our 
first  motion  so  as  to  come  within  the  scope  of  the  law. 

Mr.  Bailey:  It  seems  to  me  there  is  one  classification  to  be 
considered,  and  that  is  that  this  act  shall  apply  to  occupations 


35 

which  are  carried  on  for  business  or  trade  purposes.  That  strikes 
out  the  domestic  labor  and  domestic  service,  and  the  theory  of 
this  thing,  as  I  understand  it,  is  that  a  business  ought  to  carry 
its  own  risk  and  put  the  extra  cost  into  the  bill,  so  that  it  is  a  fair 
line  of  division  to  say  that  this  shall  apply  to  trades  and  busi- 
nesses, and  not  to  domestic  employments,  and  I  think  that  is 
worth  thinking  of.  In  England,  of  course,  they  do  not  do  that. 
A  domestic  servant  gets  hurt,  the  employee  gets  compensation, 
and  every  householder  gets  insured,  as  I  am  told.  He  gets  em- 
ployers' liability  insurance,  and  that  covers  it.  But  I  think,  to 
start  with  here,  we  ought  to  have  some  language  that  would 
leave  out  domestic  service  and  things  of  that  sort,  and  if  you  con- 
fine it,  as  they  do  in  the  New  York  act,  to  occupations  which 
are  carried  on  as  trade  and  business,  that  would  cover  it. 

The  Chairman:  It  is  moved  and  seconded  that  we  strike  out 
the  question  of  employments  having  accidents,  and  simply  make 
it  cover  all  employments. 

Mr.  Gillette:  I  accept  that  amendment. 

Mr.  Wigmore:  I  should  be  opposed  to  the  broad  proposi- 
tion merely  from  the  broad  point  of  view  of  policy.  If  we  are 
going  to  change  the  rule  for  certain  employers,  it  is  fair  that  each 
employer  should  know  beforehand,  so  far  as  simple  language 
can  classify  him,  whether  he  ought  to  take  out  insurance  on  his 
new  risks,  and  whether  he  stands  under  the  law,  and,  if  you  say  all 
employments  or  use  any  vague  language  like  that,  the  line  between 
clerical  service  and  all  that  sort  of  thing  and  farm  hands  and  so 
forth  becomes  so  vague  that  nobody  will  know  where  he  stands. 
Much  better,  therefore,  to  begin  with  the  simple  way  that  the 
English  act  began,  name  your  employments  in  fair,  ordinary 
language,  and,  when  the  time  comes,  enlarge  them. 

Mr.  Lowell:  My  idea  of  an  act  is  to  cover  everything,  mer- 
cantile establishments  and  domestic  servants  and  everything. 

Mr.  Wigmore:  Then  say  so. 

Mr.  Lowell:  We  do.  '*A11  employments."  That  covers 
everybody  who  has  any  one  under  him. 

Mr.  Schutz  :  It  seems  to  me,  if  we  are  going  to  profit  by  the 
experience  of  Europe,  in  Germany  they  cover  everything  but 
farm  labor  and  domestic  service,  and  I  am  informed  the  Reichs- 
tag has  a  committee  considering  that  now,  and  will  recommend 
covering  those  two.  So  it  seems  to  me,  if  we  believe  in  profiting 
by  experience,  we  should  cover  them  all. 


36 

Mr.  Boyd:  The  German  act  in  1884  first  adopted  the  plan  of 
insurance  against  sickness  alone.  It  did  not  apply  to  agricult- 
ural occupations  at  all.  Then  they  added  insurance  against 
accidents,  which  did  not  apply  to  agricultural  operation  at  all. 
Then  they  added  in  1889  the  agricultural  occupation.  It  will  be 
perfectly  useless  for  us  to  go  before  the  Ohio  Legislature  and 
propose  a  bill  to  bring  in  all  these  occupations  at  first,  even  though 
we  intend  ultimately  to  do  it.  We  never  would  get  anywhere. 
It  would  not  stay  in  the  Legislature  over  three  days  at  most. 

The  Chairman:   Any  further  discussion  on  that  motion? 

Mr.  Howard  :  In  the  Massachusetts  Commission  we  discussed 
the  question  of  covering  all  employments  where  five  men  or 
more  were  employed, — five  persons.  That  would  eliminate  a  vast 
majority  of  household  servants  and  the  small  farmer  who  em- 
ploys two  or  three  men. 

Mr.  Rohr:  It  has  been  our  observance  and  experience  that 
there  are  a  good  many  people  who  employ  four  or  five  people, 
and  quite  a  number  of  accidents  occur  in  those  places,  and  we 
cannot  see  the  reason  why  a  man  who  only  employs  four  or  five — 
why  the  accidents  occurring  in  his  place  should  not  come  under 
that  head,  where  he  is  engaged  outside  of  agriculture. 

Mr.  Golden:  The  Illinois  Commission  had  that  same  propo- 
sition up,  and  they  came  to  the  conclusion  that  they  could  not 
pass  that  law,  because  there  were  a  great  many  painter  contract- 
ors, carpenter  contractors,  and  small  employers  employing  three 
or  four  or  five  men,  and  making  their  livelihood  by  it,  and  we 
simply  make  it  cover  all.  We  could  not  say  a  house  that  em- 
ploys five  or  more.     We  eliminate  that. 

Mr.  Boyd:  I  point  out  there,  Mr.  Chairman,  that  you  did  not 
get  anywhere.  Your  bill  was  not  recommended  to  the  Legis- 
lature. W^e  want  a  bill  that  we  can  recommend  to  the  Legis- 
lature with  some  probability  of  its  passing. 

Mr.  Neill:  May  I  suggest  there  are  two  very  distinct  aspects 
to  this,  and  it  seems  to  me  we  would  make  more  progress  if  we 
took  up  the  question,  first,  whether  as  an  ideal  all  employments 
ought  to  be  covered,  and,  second,  what  the  practical  question  is? 

Mr.  Wainwright:  May  I  say  a  word,  Mr.  Chairman?  I 
recall,  although  I  do  not  profess  to  be  able  to  discuss  it  from  the 
highly  technical  standpoint  some  of  you  gentlemen  do, — I  recall 
in  a  discussion  of  this  what  we  attempted  to  do  was  to  frame  a 
compensation  act  for  emplo3Tnents  where  there  was  a  risk,  so 


37 

as  to  be  able  to  insure,  as  far  as  it  was  reasonably  possible,  its 
being  sustained  on  constitutional  ground.  Now  a  great  many 
of  us,  because  we  thought  the  police  power  of  the  State  could 
be  more  successfully  invoked,  took  certain  clearly  defined  hazard- 
ous occupations  as  to  which  there  could  be  no  question,  and  we 
put  them  in,  as  I  recall,  finally,  for  the  purpose  of  avoiding  liti- 
gation, so  as  to  make  the  rights  under  the  act  perfectly  plain. 
Now  some  of  us,  I  recall,  wanted  to  have  our  act  in  form  so  that 
it  would  apply  to  all  employments,  and  using  the  words  of  our 
act,  "in  which,  from  the  natural  condition  or  prosecution  of  the 
work,  risks  to  the  life  or  limb  of  workmen  engaged  therein  are 
inherently  necessary  or  inevitable,''  and  there  was  quite  a  senti- 
ment in  our  Commission  that,  had  that  been  done,  we  could  have 
had  a  very  much  better  act  than  we  did,  and  it  seems  to  me  that, 
if  we  could  at  this  Conference,  in  place  of  attempting  to  put 
itself  on  record  as  covering  all  employments,  which  is  mani- 
festly impractical,  adopt  some  generalization  of  employment 
which  would  cover  all  people  who  are  in  any  way  subject  to  risks 
or  even  slight  risks  in  the  particular  employment  in  which  they 
happen  to  be,  we  would  get  better  results. 

A  Member:  I  would  like  to  understand  if  that  phraseology 
would  be  understood  as  covering  farm  labor, — the  language  Mr. 
Wainwright  just  used?    Are  risks  inherent  in  that  employment? 

Mr.  Wainwright:  I  suppose  it  would. 

A  Member  :  The  statistics  show  agricultural  labor  to  be  the 
most  dangerous  of  any. 

Mr.  Wainwright:  We  were  perfectly  willing  to  stand  for  farm 
labor  in  our  Commission,  if  our  farmers  would  stand  for  it,  but 
they  never  would. 

Mr.  Smith:  There  is  the  danger  line.  It  seems  to  me  the 
General  Assembly  or  Commission  that  will  recommend  or  elimi- 
nate a  certain  class  are  going  at  the  subject  in  a  cowardly  manner. 
There  is  the  great  trouble  with  our  legislation  in  this  country. 
If  you  will  omit  a  certain  fellow  or  a  certain  class,  you  get  his 
vote.  I  will  never  be  a  party,  as  a  member  of  the  Commission, 
to  write  my  name  to  a  bill  that  will  omit  anybody  that  is  subject 
to  accident  in  our  State. 

The  Chairman  :  Without  fear  or  favor. 

Mr.  Dickson:  Mr.  Chairman,  as  we  must  necessarily  return 
to  this  subject,  I  move  the  previous  question. 

The  question  was  then  put,  and  the  motion  prevailed. 


38 


Number  2.    Shall  All  Injuries  be  covered,  Irrespective 
OF  Negligence? 

Mr.  Dickson:  I  move  the  affirmative. 

Mr.  Gillette:  I  don't  know  that  I  wish  to  amend  that.  I 
just  wish  to  raise  this  question.  I  want  to  see  whether  the  gentle- 
man wishes  to  exempt  any  wilful  and  malicious  negligence. 

Mr.  Dickson:  Yes,  that  I  take  as  a  matter  of  course. 

The  Chairman:  I  would  not  take  that  motion  to  mean  that, 
Mr.  Dickson.  I  would  like  to  have  that  thing  discussed  from 
the  standpoint,  first,  of  the  general  proposition.  I  don't  want 
to  influence  you  generally,  but  I  want  to  know  the  opinion  of 
the  gentlemen  here  as  to  whether  we  want  to  leave  that  unlim- 
ited. We  have  discussed  that  a  good  deal  in  our  Commission, 
as  to  whether  we  want  to  say  anything  about  wilful  negligence. 

Mr.  Bailey:   I  think  the  question  should  be  divided. 

A  Member:  The  question  is  that  it  should  be  in  the  affirmative. 

Mr.  Bailey:  I  will  ask  to  have  the  question  divided,  because, 
as  it  is  now,  it  applies  to  negligence  of  workmen  and  the  employer, 
and  it  seems  to  me  there  are  two  questions  there,  and  we  ought 
to  know  what  we  are  voting  on. 

The  Chairman:  I  take  it  you  mean  all  injuries,  irrespective 
of  negligence  on  either  side.     Change  the  basis. 

Mr.  Wigmore:  I  second  Mr.  Bailey's  motion,  not  because 
I  think  we  are  uncertain  about  this,  but,  if  we  are  going  out  before 
the  public  on  a  matter  that  involves  two  totally  distinct  legal 
principles,  we  must  express  ourselves.  Those  outside  of  us  may 
differ  with  us.  Now  each  field  will  want  to  know  just  where  we 
stand. 

Mr.  Saunders:  I  move  that  we  cover  all  injuries  irrespective 
of  the  negligence  of  the  employer. 

The  Chairman:  Let  me  ask  one  question.  Are  we  to  treat 
that  as  one  where  the  injuries  arise  out  of  the  course  of  employ- 
ment and  due  to  the  course  of  employment,  is  that  the  under- 
standing of  the  discussion? 

Mr.  Gillette:  Why  do  you  exempt  the  employee? 

Mr.  Saunders:  We  don't.  We  are  discussing  the  second 
motion. 

The  Chairman:  As  I  understand,  this  motion  is  to  divide 
number  2  into  two  questions,  and  discuss  first  the  question  as 


39 

to  whether  or  not  there  shall  be  compensation  irrespective  of 
the  negligence  of  the  employer.     Am  I  right? 

Mr.  Saunders:  Yes. 

The  Chairman:  Leave  the  question  of  the  negligence  of  the 
employee  till  you  come  to  that.  Any  remarks?  Are  you  all 
ready  to  vote  on  that  question? 

The  motion  prevailed. 

The  Chairman:  Now  you  have  a  subdivision. 

Mr.  Dickson:  I  move  that  you  have  a  question  which  you 
call  2  B,  the  other  one  2  A,  "Shall  all  injuries  be  covered,  irrespec- 
tive of  the  negligence  of  the  employee,  unless  the  employer  can 
prove  malicious  negligence?" 

The  Chairman:  That  relieves  the  employee  of  fault,  imless 
it  is  malicious  injury.  But  you  have  always  got  that  question 
of  fact  in  every  case. 

Mr.  Bailey:  I  wish  to  speak  against  that  at  the  proper  time. 
It  seems  to  me  that  is  narrowing  it.  Many  of  the  States  have 
abolished  contributory  negligence. 

The  Chairman:   Why  don't  you  move  to  amend  it? 

Mr.  Bailey:  I  move  to  amend  it  by  striking  out  the  last  few 
words. 

Mr.  Neill:  I  second  the  motion. 

Mr.  Lowell:  It  seems  to  me  this  whole  scheme  which  is 
going  through  everywhere  is  based  on  this  assumption,  which 
I  think  is  a  proper  assumption,  that  the  industry  shall  bear  the 
burden  of  the  injuries  which  are  consequent  upon  it.  Now  that 
covers  to  my  mind  all  injuries, — we  have  already  voted  on  that, — 
all  injuries  irrespective  of  the  negligence  of  the  employer.  But 
it  does  not  cover  all  injuries  irrespective  of  the  negligence  of  the 
employee,  for  this  reason:  the  only  part  of  the  injuries  which 
happen  to  the  employee  which  are  really  a  burden  on  the  business 
are  those  where  his  carelessness  is  merely  such  as  is  necessary 
in  the  carrying  on  of  the  business.  By  that  I  mean  this:  it  is 
necessary,  as  I  understand  it,  in  modern  industry,  or  it  is  inevi- 
table, we  will  say,  that  in  modern  industry  a  man  working  on  a 
machine  may  be  guilty  of  what  is  now  known  in  our  common 
law  courts  as  carelessness,  because  of  the  high  rate  of  speed  and 
the  amount  of  attention  which  he  must  give  to  his  job,  necessi- 
tating that  every  now  and  then  his  mind  will  wander  for  a  moment, 
and  he  will  be  injured.  Now  that  I  should  cover;  but  I  should 
not  cover  a  case  where  he  was  guilty  of  a  breach  of  a  statutory 


40 

regulation,  anything  of  that  sort,  because  that  is  not  a  neces- 
sary incident  of  the  trade,  and  that  is  the  distinction  which  I 
would  make.  I  admit  right  off  that  it  is  a  very  difficult  distinc- 
tion to  make  in  words,  and  that  it  will  lead  to  lawsuits.  I  will 
admit  that  right  off.  But,  after  all,  when  you  come  down  to 
it,  we  must  not  let  this  bugbear  of  lawsuits  run  away  with  us. 
You  have  got  to  have  a  system  which  has  some  fair  basis  to  it. 
Now  it  is  unfair,  when  you  come  down  to  it,  that  the  employers 
should  be  stuck  if  a  fellow  puts  his  hand  in  on  purpose.  It  is 
not  fair.  I  don't  care  how  much  you  argue  about  it,  you  cannot 
ever  convince  an  employer  or  an  employee,  and  I  have  found 
that  in  our  hearing.  All  of  the  employees  in  Massachusetts 
admit  right  off,  when  you  explain  it  to  them,  that  it  is  not  fair 
that  their  employer  should  pay  them  if  they  go  to  work  and  put 
their  hand  in  on  purpose.  Now  you  have  got  to  have  that  dis- 
tinction, whether  it  raises  lawsuits  or  not,  in  order  to  have  a 
law  which  will  commend  itself  to  the  fair-minded  opinion  of  the 
public  at  large,  that  does  not  care  for  either  the  one  side  or  the 
other. 

A  Member:  Is  it  ever  possible  to  decide  whether  he  put  his 
hand  in  on  purpose? 

Mr.  Lowell:  That  to  my  mind  is  the  trouble  with  all  human 
affairs:  you  can  never  positively  decide  one  way  or  the  other, 
but,  in  order  to  have  a  law  that  is  fair,  you  have  to  leave  that  open. 

The  Chairman:  Have  you  considered  that? 

Mr.  Dickson:  I  think  you  are  right,  but  if  I  may  say  support- 
ing Mr.  Lowell's  proposition,  I  would  put  that  in  for  two  pur- 
poses: first,  to  meet  Mr.  Boyd's  practical  question,  you  have 
got  to  put  in  something  that  is  fair,  that  will  appeal  to  the  general 
public  and  to  the  Legislature;  and,  second,  in  our  hearings  I  have 
never  given  any  weight  to  the  statements  which  some  employers 
have  made  that  a  workman  will  purposely  seriously  injure  him- 
self. We  had  employers  come  before  us  and  say  that  they  had 
not  any  doubt  that  a  man  would  stick  his  leg  in  and  have  it  taken 
off  if  he  thought  he  could  get  compensation.  It  seems  to  me 
such  cases  would  be  so  extremely  rare  they  ought  not  to  be  taken 
into  consideration  at  all.  But,  on  the  practical  side,  we  must 
put  something  of  that  kind  in,  to  put  it  through  the  Legis- 
lature. 

Mr.  Bailey:  Fraudulent  and  wilful  misconduct  of  the  workman 
would  disentitle  him.     I  understood  that  went  without  saying. 


41 

I  think  that  should  go  in.  But  I  do  not  go  so  far  as  to  say  that 
this  contributory  negligence  of  the  workingman — the  minute 
you  bring  that  in,  I  think  you  go  too  far,  except  for  wilful  and 
fraudulent  misconduct. 

Mr.  McEwen:  I  have  given  considerable  thought  to  this 
question,  and  I  do  not  believe  that  there  is  one  man  in  a  million 
who  wilfully  wants  to  commit  suicide  in  the  course  of  his  em- 
ployment. At  the  mines  of  the  United  States  Steel  Corporation 
in  Minnesota  I  know  of  a  man  who  was  blinded  by  the  explosion 
of  powder.  He  went  into  a  tardy  explosion,  thinking  that  the 
fuse  was  out,  after  having  remained  away  fifteen  minutes:  he 
had  not  been  in  there  more  than  half  a  minute  before  the  explo- 
sion occurred,  and  he  was  blinded.  There  would  be  a  chance  for 
a  lawsuit,  to  determine  whether  that  man  was  wilfully  endanger- 
ing himself. 

Mr.  Dickson:  Suppose  such  a  case  as  that  came  to  the  jury 
and  you  put  the  burden  of  proof  on  the  employer,  how  many 
times,  do  you  think,  he  would  be  able  to  prove  that  the  man  was 
negligent? 

Mr.  McEwen:  Society's  solicitude  in  this  matter,  it  seems  to 
me,  is  to  minimize  poverty  and  industrial  accidents.  Suppose  a 
man  is  fatally  injured  and  leaves  a  family  behind  him,  ought  not 
there  to  be  some  consideration  taken  there?  On  the  other  hand, 
what  has  an  employer  got  to  bear?  I  went  into  a  furniture 
factory  in  Minnesota  the  other  day,  and  saw  a  man  operating  an 
old-fashioned  buzz-planer.  We  know  any  number  of  men  who 
have  lost  four  fingers  on  this  kind  of  a  machine.  Some  of  them 
were  expert  workmen,  too,  but  there  will  come  a  time  when  they 
will  momentarily  forget.  I  said  to  the  employers,  "You  ought 
to  have  a  safety  cylinder  there,  and  minimize  the  danger  of  acci- 
dents." "Why,"  he  said,  "I  have  had  that  machine  for  twenty 
years,  and  there  hasn't  been  a  man  hurt  there."  I  picked  up  a 
paper  two  days  later,  and  found  this  operator  lost  his  two  fingers. 
Now  what  about  the  employer  in  that  matter? 

A  Member:  He  should  pay. 

Mr.  McEwen:  Yes,  but  labor  is  more  interested  in  immunity 
than  in  compensation,  and  this  man  ought  to  be  penalized  for 
his  failure  to  provide  necessary  safety  devices. 

A  Member:  Mr.  Chairman,  if  there  is  a  clause  put  in  there  that 
contemplates  the  employee's  wilful  and  serious  misconduct,  I 
make  the  very  strong  suggestion  that  it  should  be  more  exactly 


42 

defined.     It  won't  operate,  perhaps,  when  it  gets  to  the  jury, 
but  under  general  words  there  will  be  many  instances  where  the 
argument  will  be  advanced  that  the  injured  workman  has  been 
guilty  of  serious  and  wilful  misconduct,  and,  if  it  is  positively 
stated  in  the  law  what  such  serious  and  wilful  misconduct  con- 
sists of,  then  the  workman  won't  be  forced  to  a  great  many  settle- 
ments that  he  will  otherwise  be  forced  to  make  to  his  disadvantage 
if  you  put  in  general  words.     So  I  urge  you  to  specify  any  partic- 
ular cases  that  should  operate  to  bar  the  workman  of  his  claim. 
Mr.  Golden:  Take  this  case.  A  man  is  working  in  a  machine- 
shop  or  in  any  kind  of  a  shop,  and  the  employer,  through  the 
inspection  of  the  State,  is  ordered  to  put  guards  on  those  machines. 
The  guards  are  placed  there :  the  employees  don't  like  to  work  on 
a  machine  with  a  guard.     After  the  foreman  of  the  employer 
goes  away,  he  removes  that  guard,  and,  while  the  guard  is  re- 
moved, he  is  injured.     That  is  what  we  call  misconduct  of  an 
employee,  and. that  is  what  we  have  talked  over  time  and  again 
in  the  Commission  of  the  State  of  Illinois.     We  do  not  believe 
that  a  man  is  going  to  deliberately  push  his  hand  into  a  ma- 
chine and  have  it  taken  off,  though  he  might  be  absent-minded  for 
a  moment,  and  do  that;  but,  where  a  guard  is  used  on  a  machine 
and  it  is  removed  by  the  employee  that  is  working  on  the  machine 
and  he  gets  injured  or  gets  hurt  or  gets  killed,  we  simply  claim 
that  that  is  a  misconduct  of  the  employee. 

Mr.  Howard:  That  is  not  my  idea  of  ''wilfully."  It  seems 
to  me  such  a  case  as  you  speak  of  ought  to  be  against  the  em- 
ployer; that  is,  the  employer  must  feel  that  he  is  responsible  for 
seeing  that  all  those  rules  are  carried  out,  that  those  guards  are 
kept  on  there.  The  exception  which  I  understood  Mr.  Dick- 
son to  make  was  a  case  where  a  man  would  go,  and  intentionally, 
perhaps,  commit  suicide  in  order  to  get  compensation  for  his 
family  or  to  stick  his  hand  deliberately  into  a  machine  to  have 
it  cut  off  and  get  compensation  for  that  hand.  Now  it  seems 
to  me  the  number  of  cases  where  that  will  be  done  are  so  few  that 
they  can  almost  be  disregarded,  and  the  difficulty  of  proving  that 
a  man  really  did  that  in  a  lawsuit  would  be  extremely  great. 
The  burden  of  proof  would  be  on  the  employer. 

A  Member:  I  do  not  object  to  a  clause  of  this  kind,  except 
I  want  it  to  work  automatically.  I  want  some  additional 
penalty  placed  on  the  employer  in  addition  to  the  insurance 
feature. 


43 

Mr.  Howard:  I  would  like  to  ask  Mr.  Dickson  what  he  meant, 
— you  had  in  mind  just  what  I  had? 

Mr.  Dickson:  Yes. 

Mr.  Wigmore:  Won't  Mr.  Dickson  accept  this  statement, 
then?  "Injuries  self-inflicted  for  the  purpose  of  receiving  com- 
pensation." 

Mr.  Dickson:  Yes. 

Mr.  Neill:  May  I  suggest  just  one  consideration  that  we 
seem  to  have  lost  sight  of.  Mr.  Lowell  was  pointing  out 
this  was  a  question  of  fairness  between  employer  and  employee. 
Now,  as  a  matter  of  fact,  the  trend  in  the  European  countries 
has  been  the  other  way.  The  term  "  industrial  insurance ''  has  been 
propped,  and  the  term  "social  insurance"  has  been  adopted  to 
emphasize  the  idea  that  this  is  not  a  question  of  penalizing  the 
employer :  it  is  a  question  of  getting  an  equitable  social  condition. 
Now,  if  you  could  make  every  man  bear  his  own  burden,  the 
burden  of  his  own  acts,  I  should  unquestionably  agree  with  Mr. 
Dickson  and  those  who  are  advocating  this  view;  but  you  can- 
not. In  the  first  place,  if  the  man  has  a  family,  the  family  have 
got  to  bear  the  burden  of  his  loss,  and,  as  a  matter  of  fact,  the 
community  has  got  to  bear  it.  Somebody  has  to  support  them. 
Now  you  might  put  it  this  way.  It  is  a  question  of  the  dis- 
tribution of  taxation.  Where  are  you  going  to  raise  funds  to 
take  care  of  that  family?  They  ought  to  be  taken  care  of;  they 
ought  not  to  be  made  paupers;  they  ought  not  to  become  re- 
cipients of  charity. 

Mr.  Wigmore  :  You  are  speaking  of  the  man  who  deliberately 
injures  himself? 

Mr.  Neill:    Yes,  and  disqualifies  himself  from  continuing. 

Mr.  Wigmore:  Is  not  the  answer  to  that,  if  this  is  written 
plainly  into  the  law,  that  he  won't  injure  himself? 

Mr.  Neill:  Oh,  I  don't  think  that.  I  don't  think  that  for 
a  moment,  Mr.  Dickson.  Those  cases  are  so  rare,  and,  even  if 
you  do,  somebody  must  take  care  of  the  family.  In  the  one  case, 
you  are  placing  the  burden  of  caring  for  that  family  on  those  who 
are  charitable.  The  other  way,  you  take  it  out  of  the  industry, 
and  the  family  does  not  become  dependent  on  charity,  but  ac- 
cepts it  as  a  provision  made  by  the  statute  to  take  care  of  them. 
So  it  is  not  only  a  question  of  fairness  to  the  employer:  it  is  a 
larger  social  question. 

Mb.  ScHUTz:   I  agree  with  the  last  speaker,  because  I  think 


44 

an  incident  of  this  will  be  that  the  insurance  companies  and  the 
employers  will  see  to  it,  as  far  as  possible,  that  the  safety  devices 
are  used,  especially  if  the  insurance  is  mutual,  as  it  is  in  Germany. 

Mr.  Gillette:  Now,  Mr.  Chairman,  from  my  own  experi- 
ence, although  an  employer,  I  believe  that  the  man  who  removes 
the  safety  device,  nevertheless,  ought  to  be  compensated  for  the 
sake  of  his  family.  I  am  inclined  toward  that,  because  I  see  it 
frequently  happens  that  these  accidents  do  occur  from  the  re- 
moval of  safety  devices.  It  is  strange  to  see  how  that  happens. 
But  I  would  be  inclined  to  believe  with  my  associate,  Mr. 
McEwen,  in  regard  to  this  case  of  malicious  accident,  if  it  were 
not  for  a  case  I  heard  in  his  own  office,  a  case  of  self-injury,  where 
not  only  did  he  do  violence  to  his  contract  as  a  railroad  man, 
and  recovered  compensation  after  compensation,  but  he  did 
violence  to  his  own  benevolent  orders,  and  perpetrated  a  fraud 
upon  the  brakeman's  benevolent  funds  and  I  donH  see  a  bit  of 
harm  in  putting  it  in.  It  seems  to  me  it  is  good  and  one  of  the 
provisions  contained  in  most  of  the  foreign  acts. 

Mr.  Bailey:  I  don't  like  the  word  "serious."  Say  ** fraudu- 
lent and  corrupt." 

Mr.  Dickson:  May  I  restate  the  motion  as  I  understand  it? 
I  have  accepted  the  amendments: — 

"2B.  Shall  all  injuries  be  covered,  irrespective  of  the  negli- 
gence of  employees,  except  where  such  injuries  are  self-inflicted 
for  the  purpose  of  securing  compensation  and  providing  that 
proof  of  self -injury  must  rest  on  the  employer?" 

I  would  make  it  clear,  though,  for  these  practical  purposes. 
Shall  I  read  it  again?  [Rereading  the  motion.]  I  move  that  the 
answer  to  that  be  in  the  affirmative. 

Mr.  Alexander:  We  should  go  much  further  than  either 
Mr.  Dickson  or  Mr.  Lowell  have  indicated,  and  Mr.  Neill  has 
furnished  one  of  the  arguments  why.  It  is  largely  a  social  ques- 
tion. Because  of  that  we  are  not  interested  solely  in  the  com- 
pensation for  injuries,  but  also  in  the  protection  against  injuries. 
Protection  can  be  of  a  twofold  nature,  protection  through  safety 
devices  and  proper  safety  rules,  and  another  one — and  here  it  is 
where  the  social  question  comes  in  particularly — by  training  and 
educating  the  employees  to  be  more  careful.  I  have  had  a  good 
opportunity  to  observe,  and  through  many  years  of  observation 
I  have  come  to  the  conviction  that  not  only  the  American  work- 
ingman,  but  Americans  as  a  class,  are  careless,  and  I  should  like 


45 

therefore  to  see  a  law  framed  which  will  educate  people  so  as  to 
make  them  careful.  Now,  if  we  state  that  compensation  under 
one  or  another  law  should  not  be  granted  where  the  employee 
can  be  proved  by  the  employer  to  have  injured  himself,  not  for 
the  sake  of  getting  compensation  only,  but  through  carelessness, 
through  disobedience  to  rules,  we  shall  not  only  be  more  just  to 
employer  and  employee,  but  I  think  we  shall  train  the  employees 
in  greater  care.  There  are  not  many  cases,  as  has  already  been 
stated,  where  employees  intentionally  injure  themselves  or  com- 
mit suicide,  but  there  are  innumerable  cases  where  the  employees 
simply  are  in  the  habit  of  disregarding  rules  and  not  taking  care 
of  themselves,  and  I  should  like  to  see  those  cases  covered  by  pe- 
nalizing the  employee,  except — this  is  the  only  exception  I  should 
like  to  see — where  the  injury  results  either  in  permanent  dis- 
ability or  in  death,  where  there  may  be  a  family  dependent  that 
is  now  forever  deprived  of  his  support.  But,  where  the  injury 
is  only  of  a  temporary  character,  the  man  may  recover  again  and 
support  his  family,  he  should  be  penalized  for  his  own  careless- 
ness. I  think  we  want  to  go  very  carefully  before  we  settle  this 
matter  finally,  because  I  thoroughly  believe  whatever  laws  are 
passed  must  be  of  a  constructive  character,  must  eliminate  in  our 
people  such  characteristics  as  now  cause  the  conditions  that 
necessitate  the  consideration  of  the  subject. 

Mr.  Howard:  I  represent  the  employers*  class.  I  am  an 
employer,  and  I  do  not  believe  it  ever  enters  into  the  employee's 
mind  whether  he  is  going  to  get  compensation  or  not  if  he  removes 
the  guard  from  an  emery  wheel.  He  does  it  because  it  is  more 
convenient  for  him  to  work  without  the  guard.  I  do  not  believe 
that  other  consideration  would  enter  in  at  all,  but  I  do  think,  if 
an  employer  knows  he  is  not  exempted  from  liabiUty  by  that 
removal,  he  is  going  to  take  special  precaution  to  see  that  the 
employee  carries  out  all  those  rules,  and  I  believe  you  have  got 
to  put  it  up  to  the  employer. 

Mr.  McEwen:  I  have  observed  this  in  my  experience  as 
Commissioner  of  Labor  in  Minnesota,  having  charge  of  factory 
and  workshop  inspection,  that  with  the  man  who  is  familiar  with 
the  operation  of  a  machine  without  safety  devices,  it  is  hard  for 
him  to  adapt  himself  to  the  machine  after  the  safety  devices  have 
been  installed,  but,  if  a  man  gets  famiUar  with  the  machine  after 
the  safety  device  is  put  on,  he  learns  to  operate  it  as  rapidly  with 
the  device  as  the  other  man  does  without  it,  and  he  invariably 


46 

keeps  that  safety  device  in  its  place.  Over  in  Germany,  in  the 
Museum  of  Safety  and  Sanitation,  I  spent  considerable  time  in 
watching  the  men  being  trained  in  the  use  of  safety  devices,  and 
I  observed  that  to  be  true  over  there,  resulting  from  conversa- 
tions with  men  who  came  there  on  Sunday  to  be  trained,  and  I 
think  that  this  thing  will  solve  itself  in  time,  so  soon  as  the  use 
of  safety  devices  becomes  more  general  in  all  States. 

The  Chairman:  May  I  just  suggest  that  it  seems  to  me  the 
interest  of  the  man  is  just  the  same  and  interest  of  the  man's 
family  is  the  same,  and  the  possibility  of  a  man  committing  sui- 
cide for  the  purpose  of  getting  compensation  is  so  rare  that  the 
employee  is  better  off  with  the  exemption  off  than  he  is  with  it  in. 
The  courts  are  better  off,  the  employee  is  better  off.  But  the 
moment  you  raise  the  question  of  fault  of  the  employee,  you  are 
going  to  find  from  a  practical  standpoint  that  you  will  penalize 
the  employer  if  he  commits  a  criminal  act.  That  is  the  danger 
of  the  statute.  If  he  is  grossly  negligent  in  the  way  he  handles 
his  men,  then  you  will  have  the  question  there  all  the  time,  politi- 
cal question  there,  or  point  of  principle,  whether  you  ought  to 
penalize  the  employer  for  serious  negligence  or  something  the  same 
kind  as  malice,  and  you  are  going  to  get  the  question  in  in  both 
sides  of  it,  and  I  think  I  shall  stand  for  the  other  proposition,  just 
leaving  it  clear  open. 

Mr.  Boyd:  Mr.  Chairman,  your  point  in  regard  to  negligence 
of  the  employer,  the  remarkable  feature  about  the  German  act, 
is  that  in  the  law  requiring  manufacturers  to  associate  themselves 
in  associations  the  amount  he  pays  depends  on  the  number  of 
risks  he  has  in  proportion  to  the  number  of  employees.  If  he  is 
negligent,  he  is  penalized,  and  he  is  taken  care  of  that  way  in  the 
act  itself.  The  same  is  true  in  regard  to  employees.  They  are 
required  to  insure  against  sickness  in  aid  associations,  so  that,  if 
one  man  finds  out  that  another  is  playing  sick,  he  is  helping  to 
pay  for  him,  and  he  will  see  he  is  not  sick  unless  he  really  is  sick. 

The  Chairman:  That  comes  under  the  question  of  contribu- 
tion. 

Mr.  Boyd:   Yes. 

Mr.  Dickson:  I  will  say  this:  I  fully  agree  with  the  chairman. 
I  should  like  to  leave  it  out  entirely,  because  I  do  not  attach  any 
weight  whatever  to  the  point  that  the  employee  would  wilfully 
injure  himself.  I  think  it  is  a  negligible  quantity,  except  from 
a  practical  standpoint,  that  while  it  is  so  very  rare  it  sticks  out 


47 

to  the  average  man  as  an  unfair  thing  to  the  employer,  and  you 
have  got  to  count  on  it  in  getting  it  through  the  Legislature,  and, 
as  practical  men,  we  have  taken  care  of  it. 

Mr.  Neill:  May  I  make  one  further  suggestion?  I  agree 
with  Mr.  Alexander  that  the  education  is  desirable,  but  I  think 
a  man  should  be  made  to  pay  the  penalty  for  his  education,  and 
not  his  family.  I  suggest  this  as  a  way  of  meeting  the  objection, 
— to  pay  the  man  or  the  family  for  the  injury  and  penalize  the  man 
individually. 

The  Chairman:  That  is,  not  allow  him  to  recover? 

Mr.  Neill:  Yes,  pay  his  family  and  send  him  to  jail  if  he  has 
intentionally  incapacitated  himself  from  supporting  them.  And 
further  than  that,  if  you  are  going  to  require  safety  devices,  since 
the  public  has  to  pay  for  the  man  not  using  them,  penalize  the 
employee  if  he  violates  the  law  in  taking  off  the  safety  device,  and, 
in  other  words,  make  him  pay  the  penalty  of  his  misdeed,  and  let 
his  family  be  taken  care  of  through  the  Compensation  Act. 

Mr.  Alexander:  I  don't  refer  to  deliberate  injury  on  the  part 
of  the  workman.  I  think  that  can  be  easily  settled,  because 
there  are  few  cases.  But  it  is  the  question  of  compensation  that 
I  refer  to.  You  cannot  put  on  an  employer  the  burden  of  seeing 
that  all  safety  devices  are  used,  because  there  are  many  safety 
devices  that  are,  after  all,  only  helps  to  safety. 

Mr.  Neill:  I  suggest,  penalize  the  employee  in  some  other 
way  than  by  depriving  him  of  compensation. 

Mr.  Alexander:  Yes,  but  why  should  the  employer  or  the 
employers'  association  be  penalized  to  pay  compensation? 

Mr.  Neill:  You  are  not  penalizing  them.  You  are  penaliz- 
ing the  people  who  use  his  commodity.  I  think  it  is  a  mistake  to 
consider  this  as  penalizing  the  employer,  because  he  is,  very  prop- 
erly, going  to  transfer  this  cost  to  the  consumer. 

Mr.  Alexander:  It  would  seem  to  me  that  a  law  which  puts 
the  burden  of  proof  on  the  employer  protects  the  employee  suffi- 
ciently, as  the  employer  will  have  to  pay  in  all  cases  where  he 
cannot  prove  that  the  employee  has  maliciously  injured  himself 
or  disregarded  comm.on  rules  of  care. 

The  Chairman:  Gentlemen,  you  have  two  minutes  before  the 
time  to  adjourn. 

Mr.  Bailey:  Many  of  the  States  have  passed  on  the  ques- 
tion of  contributory  negligence.  We  have  found  that  it  does  not 
work  fairly,  that  employers  take  advantage  of  it  to  keep  a  man  out 


48 

of  a  just  claim,  and  they  have  abolished  it.  Here  we  want  some- 
thing that  is  simple  and  will  work  fairly,  and  it  seems  to  me  that 
when  you  get  those  words  ''wilful"  and  ''corrupt"  there,  or 
these  other  words  of  Dean  Wigmore  that  are  the  same  thing, 
that  is  as  far  as  you  may  go.  When  you  go  further  you  get 
something  that  will  mean  a  lawsuit  every  time,  and  we  ought  to 
keep  pretty  clear  of  that,  if  we  are  not  going  to  have  trouble. 

The  Chairman:  Will  you  read  the  motion  again? 

The  motion  was  read  by  the  secretary,  as  follows: — 

Shall  all  injuries  be  covered,  irrespective  of  the  negligence  of 
employees,  except  where  such  injuries  are  self-inflicted  for  the 
purpose  of  securing  compensation,  and  providing  that  proof  of 
self-injury  must  rest  on  the  employer? 

The  question  was  then  put,  and  the  motion  prevailed  by  a  rising 
vote. 

The  Conference  then  adjourned  until  2.30  p.m. 


49 


Second  Session,  Thursday,  November  10,  1910,  2.30  P.M. 

The  second  meeting  of  the  Conference  was  called  to  order  by 
Chairman  Mercer. 

The  Chairman:  Gentlemen,  Judge  HoUoway  of  Montana, 
who  missed  the  opportunity  to  speak  this  morning,  not  being 
here,  has  come  in,  and  I  think,  with  your  permission,  I  will  call 
on  him  now. 

Judge  Holloway:  Mr.  Chairman  and  gentlemen,  I  have 
made  a  memorandum  that,  in  a  measure,  meets  the  requirements 
of  the  suggestion  contained  in  the  letter  I  received  from  Mr. 
Doten  some  time  ago.     In  Montana  we  have: — 

(1)  A  general  liability  statute  for  injuries. 

(2)  A  statute  modelled  after  Lord  Campbell's  Act. 

(3)  A  general  survival  statute. 

(4)  A  statute  which  leaves  to  the  jury  the  amount  of  recovery 
without  limitation. 

(5)  A  statute  which  makes  the  employee  assume  the  ordinary 
risks  of  the  business. 

(6)  A  statute  limiting  somewhat  the  defence  of  negligence  of 
a  fellow-servant,  by  designating  certain  employees  in  mining 
operations  as  vice-principals. 

(7)  A  statute,  of  doubtful  constitutionality,  withdrawing  the 
defence  of  negligence  of  a  fellow-servant  as  applied  to  railroad 
companies  only. 

In  the  absence  of  statute  the  common  law  is  in  force  in  Mon- 
tana, and  our  courts  recognize  the  defences  of  contributory  negli- 
gence, act  of  God,  unavoidable  accident  and  negligence  of  a 
fellow-servant,  except  in  the  few  instances  where  limited  or  with- 
drawn by  statute.  Our  courts,  however,  treat  these  defences  and 
the  defence  of  assumption  of  risk  as  special,  to  be  pleaded  by  de- 
fendant who  assumes  the  burden  of  proof  as  to  such  defences, 
except  in  the  instance  of  the  defence  of  contributory  negligence 
when  plaintiff's  own  pleading  discloses  that  his  injuries  resulted 
from  some  act  of  his  own,  when  he  must  absolve  himself  from  the 
implication  of  contributory  negligence.  In  other  words,  we  are 
still  proceeding  upon  the  theory  of  actionable  negligence,  and 
while  this  has  been  a  fruitful  source  of  litigation,  burdensome 
alike  upon  the  employee,  the  employer,  and  the  general  public 


50 

who  have  to  pay  the  court  expenses,  it  has  resulted  much  more 
favorably  to  the  employee  in  Montana  than  in  many  States,  for 
our  juries  have  been  very  liberal  in  their  verdicts.  Allowances 
for  fifteen  thousand,  twenty  thousand,  twenty-five  thousand, 
and  even  forty  thousand  dollars  have  been  made.  Some  of  these 
have  been  approved,  others  reduced  by  the  process  of  scaling 
the  verdicts.  But  the  system  is  antiquated,  and  all  parties  con- 
cerned are  looking  hopefully  for  some  remedial  legislation,  which, 
if  it  cannot  supplant  the  present  system  altogether,  will  at  least 
offer  a  favorable  alternative. 

(8)  At  the  last  session  of  our  Legislature  an  act  was  passed 
and  approved  which  provides  for  a  system  of  insurance  for  coal 
mine  operatives.  The  funds  are  obtained  by  requiring  the  opera- 
tors to  contribute  one  cent  a  ton  on  all  coal  mined  for  sale,  and 
by  requiring  the  miners  to  contribute  one  per  centum  of  their 
wages.  Three  thousand  dollars  is  fixed  as  the  amount  payable 
in  case  of  death  by  accident,  one  dollar  per  day  is  allowed  for  per- 
manent disability  during  disability,  or  this  may  be  commuted  by 
the  payment  of  a  lump  sum  not  exceeding  three  thousand  dol- 
lars. One  thousand  dollars  is  allowed  for  the  loss  of  a  limb  or 
eye.  The  management  of  the  insurance  is  in  the  hands  of  the 
State  auditor,  who  is  ex-officio  insurance  commissioner.  The  act, 
however,  did  not  take  effect  until  October  1  of  this  year,  and 
consequently  there  are  not  any  statistics  available  and  the  opera- 
tion of  the  law  is  still  a  matter  of  experiment  only. 

The  Montana  Commission  was  not  created  by  law.  On  Sep- 
tember 21  of  this  year  the  Governor,  acting  on  the  solicitation 
of  many  interested  parties,  extra-officially  appointed  a  commis- 
sion of  eight  persons  to  study  the  subject  of  Industrial  Workers' 
Compensation,  and,  if  possible  to  do  so,  to  report  a  draft  of  a 
bill  or  drafts  of  bills  looking  to  the  establishment  in  our  State  of 
a  different  system  of  compensating  the  employees  engaged  in 
dangerous  enterprises,  which  in  Montana  are  chiefly  the  railroads, 
mining,  and  reduction  works. 

Our  Commission  met  on  October  1,  organized  and  directed  the 
Secretary  to  obtain  for  us  such  reports,  statistics,  and  other  useful 
matter  as  was  available.  We  have  received  copies  of  Bulletin 
Number  74  of  the  National  Bureau  of  Labor,  Report  of  Atlantic 
City  Conference,  parts  of  the  Thirteenth  and  Fourteenth  Biennial 
Report  of  Wisconsin  Bureau  of  Labor,  Bulletin  Number  1  from 
Bureau  of  Minnesota,  and  the  first  report  of  the  New  York  Com- 


51 

mission.  These  and  the  statutes  of  New  York,  British  Columbia, 
and  Ontario,  particularly,  we  have  been  studying. 

At  the  request  of  Governor  Norris  I  am  here  to  learn  from  the 
experience  and  study  of  men  who  have  given  the  subject  much 
greater  consideration  than  time  and  opportunity  have  afforded 
us.  We  do  not  have  any  appropriation  whatever,  and  there  are 
not  available  any  public  funds  to  meet  our  expenses.  I  am 
here  at  my  own  expense.  If  the  generosity  of  our  Legislature 
prompts  reimbursement,  well  and  good.  If  it  does  not,  my  in- 
terest in  the  subject  is  ample  justification  for  my  presence  here 
and  its  concomitant  expenses. 

The  Chairman  :  Thank  you  very  much  for  your  careful  paper, 
judge. 

Gentlemen,  that  brings  us  back  now  to  the  topic  of  the  day, 
and  the  next  proposition  is  number  3. 

Number  3.     Shall  All  Persons  engaged   in  such  Employ- 
ments BE  INCLUDED? 

Mr.  Bailey  :  I  move  that  persons  who  get  above  a  thousand 
dollars  a  year  be  not  included. 

Mr.  Lowell:  The  idea  of  this  was  whether  there  should  be 
a  limit  to  the  amount  of  wages,  or  whether  you  should  have  it 
as  it  is  in  Germany,  that  people  earning  more  than  a  certain 
amount  of  wages  should  not  come  under  your  scheme.  That 
is,  if  a  man  earns  fifteen  hundred  dollars,  should  he  be  covered 
by  a  compensation  scheme? 

The  Chairman:  Any  one  want  to  be  heard  on  this  motion? 

Mr.  Bailey:  That  is  my  motion,  that  people  who  get  a  thou- 
sand dollars  or  fifteen  hundred  dollars  should  not  come  in.  For 
one  reason,  they  can  buy  accident  insurance.  If  a  man  has 
got  fifteen  hundred  dollars  or  two  thousand  dollars  salary,  or 
twelve  hundred  and  fifty  dollars,  he  can  use  a  little  of  that  to 
buy  some  accident  insurance,  and  therefore  he  does  not  need 
the  thing  the  way  a  workingman  does,  who  would  become  a  charge 
on  the  community  if  he  did  not  have  some  provision  made  for 
him.  Now  we  are  not  considering  the  constitutional  question 
at  all,  and  I  think  that  the  English  system,  which  keeps  out  people 
who  are  earning  large  sums,  might  well  be  followed,  and  that 
therefore  they  should  not  come  under  the  act. 

The  Chairman:   As  a  matter  of  fact  if  some  fellow  happens 


52 

to  be  getting  ten  hundred  and  fifty  dollars  a  year,  and  is  working 
by  the  side  of  a  man  who  is  getting  nine  hundred  dollars  a  year, 
and  they  both  have  a  leg  broken  in  the  same  accident,  in  the 
same  employment,  is  it  fair  to  pay  one  and  not  pay  the  other? 
Or  would  it  not  be  fairer  to  limit  them  both  to  a  percentage  of 
their  wages  not  exceeding  a  certain  amount,  which  would  put 
the  limitation  on  everybody  then?     I  simply  put  that  question. 

Mr.  Golden  :  In  case  of  an  engineer,  there  are  engineers  mak- 
ing from  two  hundred  to  two  hundred  and  twenty-four  dollars 
a  month.  An  engineer  works  every  day  for  his  living.  That 
would  debar  the  engineer.  It  would  not  be  right  and  just.  I 
am  opposed  to  it  for  one  from  the  Illinois  Commission. 

The  Chairman:  You  would  hardly  find  a  locomotive  engineer 
in  this  country  that,  if  he  works  all  the  time,  is  not  earning  one 
thousand  dollars,  could  you? 

Mr.  Boyd  :  In  that  I  have  some  accurate  data  from  Mr.  Huntly . 
He  said  they  earned  from  a  hundred  and  twenty-five  to  two  hun- 
dred and  forty  dollars  a  month. 

Mr.  Dickson  :  From  New  Jersey,  I  feel  that  the  only  limitation 
should  be  on  the  amount  and  not  the  individual  concerned. 

Mr.  Gillette:  That  is,  in  case  of  death  you  limit  the  amount. 

Mr.  Dickson:  Yes. 

Mr.  Gillette  :  And  in  case  of  partial  disability,  you  limit  that? 

Mr.  Dickson:  It  is  automatic  in  this  respect.  I  think  the 
New  York  law  has  it  twelve  hundred  times  the  daily  wage,  but 
in  no  case  exceed  three  thousand  dollars.  Then,  if  a  very  high- 
priced  man  was  injured,  the  three-thousand-dollar  limit  would  come 
into  play. 

The  Chairman:  That  is  the  way  I  have  been  figuring  it  in  my 
own  mind. 

Mr.  Gillette  :  This  question  ought  to  be  pretty  carefully  con- 
sidered. 

Mr.  Alexander:  It  might  also  be  put  in  this  way,  that  any- 
body earning  over  fifteen  hundred  dollars  should  be  considered 
as  earning  only  fifteen  hundred  dollars  for  the  purpose  of  com- 
pensation. 

Mr.  Lowell:  The  way  that  has  been  suggested  in  theory  for 
us  to  do  is  this,  that  we  make  no  limit  under  this  heading,  but 
that  we  have  a  limit  of  weekly  payments,  say  weekly  payments 
of  five  to  ten  dollars,  and  that  that  shall  not  continue  for  a  longer 
term  than  would  bring  up  the  total  to  three  thousand  dollars. 


53 

The  Chairman  :  How  did  you  cover  that  in  New  York, — total 
three  thousand  dollars? 

Mr.  Wainwright:  Twelve  hundred  times  the  daily  wage; 
maximum,  three  thousand  dollars. 

Mr.  Gillette:  A  man  drawing  a  salary  of  ten  or  twelve  thou- 
sand dollars  a  year,  but  being  merely  a  salaried  man,  and  having 
visited  a  mine  once  or  twice  a  year  and  being  injured  in  an  acci- 
dent there,  would,  under  the  method  that  you  are  describing,  draw 
compensation,  but  limited  compensation. 

The  Chairman:  Limited  to  the  same  amount  some  other 
fellow  would  get. 

Mr.  Wainwright:  Would  not  the  man  come  under  the  quali- 
fication in  our  law  that  an  occupation  where  there  was  an  inherent 
risk, — you  can  hardly  say  that,  if  a  president  visited  a  mine,  his 
occupation  was  one  where  there  was  an  inherent  risk. 

The  Chairman  :  Suppose  he  had  to  go  and  investigate  how  the 
work  was  going  along?  He  may  have  been  a  miner  who  knew 
more  about  it  than  any  other  person. 

Mr.  Wainwright:  I  would  not  undertake  to  say  whether  that 
man  should  come  out  under  our  law.  I  know  we  did  not  have 
him  in  contemplation. 

Mr.  Gillette:  I  am  afraid  of  it.  It  would  materially  add  to 
the  cost  without  accomplishing  the  purposes  for  which  the  Com- 
pensation Act  is  particularly  intended;  that  is,  the  relief  of  those 
who  have  not  drawn  salaries  by  which  they  can  provide  for  them- 
selves. 

A  Member:  I  think  the  insurance  companies  would  cut  that 
down.  They  would  make  the  employer  state  what  men  were 
earning  above  this  limit,  whatever  it  may  be,  and  charge  on  an 
amount  up  to  that  limit,  and  not  above  it. 

The  Chairman:  They  would  not  need  to  go  above  that  limit. 
The  only  change  would  come  if  a  man  were  injured  for  a  short 
period  of  time,  they  would  have  to  pay  a  bigger  proportion, 
perhaps,  because  they  pay  a  bigger  percentage  of  his  wage. 

Mr.  Gillette:  Well,  I  don't  know.  That  would  be  true, 
probably,  if  they  did  not  have  a  pretty  good  understanding 
among  the  insurance  companies,  but,  possibly,  some  of  you  know 
what  has  been  done  in  the  bonding  business.  They  used  to 
charge  for  the  amount  of  the  bond.  If  the  bond  were  four  thou- 
sand dollars  and  the  contract  ten  thousand  dollars,  they  would 
charge  a  certain  percentage  on  the  amount  of  the  bond.    Now, 


54 

since  the  combine  has  been  formed  by  the  insurance  companies, 
they  charge  you  the  premium  on  whatever  is  most,  the  amount 
of  the  contract  or  the  amount  of  the  bond.  I  can  see  in  case  of  a 
combine  between  the  insurance  companies  how  it  would  be  very 
easy  for  them  to  get  together  and  say,  We  will  charge  on  the  whole 
salary. 

Mr.  Wain  weight:  We  excluded  that  clause  very  effectively, 
— restricted  it  to  workmen  engaged  in  manual  labor. 

Mr.  Gillette:  But,  when  we  apply  it  to  everybody  here, 
I  am  not  clear  in  my  own  mind. 

Mr.  Wigmore:  I  understand  we  are  really  trying  to  make 
this  an  insurance  proposition.  We  are  all  familiar  with  insurance 
propositions  generally:  anybody,  no  matter  what  his  salary,  may 
take  it  out,  only  his  premium  is  based  on  his  salary.  Why,  if  we 
fix  a  maximum  of  amounts,  cannot  we  get  our  limit  that  way? 
Why  need  we  care,  any  more  than  the  ordinary  accident,  life,  or 
disability  companies  care,  what  salary  a  man  is  getting? 

A  Member:  I  think  that  is  answered  by  the  statement  that 
liability  insurance  companies  do  base  their  premium  on  pay-rolls. 

Mr.  Wigmore:  But,  if  you  have  a  maximum  of  three  thou- 
sand dollars,  everybody  is  scaled  down  to  that. 

A  Member:  They  would  scale  down  to  the  amount  of  wages 
the  man  is  allowed  benefits  on  and  charge  only  on  that,  and,  if 
they  failed  to  scale  it  down,  then  they  would  have  the  mutual 
companies,  which  would  no  doubt  grow  up  here,  as  they  have 
in  other  countries,  and  be  subject  to  free  competitive  insurance. 

The  Chairman  :  Are  you  ready  for  the  question? 

Mr.  Gillette  :  I  am  not.  I  don't  know  what  is  the  right  thing 
to  do  on  it. 

A  Member:  If  you  impose  a  limit  on  the  weekly  wage,  that 
takes  care  of  the  fact  that  a  high-priced  man  doesn't  get  any 
more.  If  you  impose  a  limit  on  the  length  of  period  for  which  he 
is  paid,  that  will  take  care  of  the  total.  And,  if  you  impose  a 
death  limit,  you  will  take  care  of  that.  I  do  not  think  there  is 
any  difficulty,  if  you  have  the  two  limits,  the  total  limit  and  the 
weekly  limit,  and  then  add  the  death  limit. 

The  Chairman:  The  question  is  whether  people  earning  more 
than  one  thousand  dollars  come  under  this  act. 

Mr.  Bailey:    I  will  make  it  fifteen  hundred  dollars. 

Mr.  Wigmore:  Cannot  we  let  everybody  come  into  the  act, 
but  keep  the  maximum  at  three  thousand  dollars,  but  not  keep 


55 

any  individual  out,  by  saying  the  whole  thing  shall  be  based  on  a 
maximum  of  three  thousand  dollars,  or  five  dollars  a  day,  and 
everybody  who  gets  more  than  that  comes  in  under  the  act  if  he 
is  hurt,  but  the  reckoning  of  the  insurance  is  limited  to  a  maximum 
of  five  dollars  a  day  wages?  I  am  certainly  opposed  to  keep- 
ing any  one  human  being  that  is  working  in  a  factory  out  of 
this  act,  and  the  proposition  so  far  made  is.  What  persons  shall 
come  in?  If  you  say  what  is  the  maximum  wage  that  shall  be 
deemed  to  be  the  maximum  wage,  it  seems  to  me  that  is  an  en- 
tirely different  matter. 

Mr.  McEwen:  Let  us  take  the  condition  of  a  railroad  con- 
ductor on  a  regular  run.  I  have  in  mind  one  now  earning  a  hun- 
dred and  fifty  dollars  a  month,  or  eighteen  hundred  dollars  a 
year,  who  has  double  expense  in  the  maintenance  of  a  home  at 
one  end  of  the  line  and  board  at  the  other  end.  As  a  matter  of 
fact,  this  board  he  is  paying  at  one  end  of  the  line  is  really  extra: 
it  would  not  be  less  than  thirty  dollars  a  month,  or  three  hundred 
and  sixtj^  dollars  a  year,  bringing  him  down  below  the  fifteen- 
hundred-dollar  mark,  and  possibly  lower.  I  do  not  believe  there 
ought  to  be  any  limitation  whatever  on  a  man's  earnings.  It 
should  be  based  entirely  on  the  risk  of  the  injury. 

Mr.  Lowell:  Mr.  Chairman,  it  seems  to  me  that  it  would  be 
unfair  to  put  a  limit  on,  because,  whatever  you  remit,  you  have  a 
case  of  gross  injustice  to  the  fellow  that  is  just  over  that,  what- 
ever the  limit  be,  because  he  is  earning  five  dollars  less.  It  seems 
to  me  by  putting  on  a  weekly  limit  of  ten  dollars  or  any  amount 
you  may  make,  and  have  a  maximum  limit  in  terms  of  three 
thousand  dollars,  you  thereb}^  get  over  all  of  the  troubles,  ex- 
cept the  one  which  Mr.  Gillette  has  stated,  that  the  insurance 
companies  will  charge  you  on  the  total  pay-roll,  will  charge  you 
on  five  thousand  dollars,  though  the  man  could  only  recover  on 
three  thousand  dollars.  I  look  at  it  from  the  point  of  view  of  the 
insurance  company,  but  it  seems  to  me  under  this  new  law,  if  the 
insurance  company  go  to  work  and  act  in  that  way,  they  will  get 
the  retribution  very  quickly  which  is  their  just  due.  These  em- 
ployers will  at  once  begin  to  say,  ''That  is  not  fair:  let  us  get 
together  and  have  a  mutual."  I  think  that  will  come  pretty 
quick  if  they  go  at  it  that  way.  So  I  should  move  there  be  no 
limit. 

The  Chairman:  You  move  to  amend  that  motion? 

Mr.  Neill  :  Is  it  true  that  the  reason  it  is  based  on  a  pay-roll 


56 

is  that  a  jury,  in  fixing  damages,  will  probably  take  regard  of  the 
man\s  income,  without  regard  of  what  it  ma}^  be?  If  the  law  were 
so  fixed  that  they  would  not  have  that  thing  to  consider — 

Mr.  Gillette:  In  all  countries  it  is  based  on  the  pay-roll. 

Mr.  Neill:  To-day,  under  our  present  law,  the  amount  an 
insurance  company  has  to  pay  will  depend  on  a  damage  suit, 
and  the  jury  will  take  into  account  what  the  man's  earning 
capacity  was.  They  had  to  pay  some  enormous  damages  in  the 
New  York  tunnel  wreck,  because  some  brokers  and  men  of  large 
affairs  were  killed. 

Mr.  Lowell:  I  should  think,  Mr.  Neill,  from  what  little 
I  know  about  it,  that  they  base  it  on  the  pay-roll  merely  as  a 
convenient  scheme  to  take.  "What  is  your  pay-roll?"  ''One 
hundred  thousand  dollars."  "Your  rate  is  so  and  so."  So  that 
I  move,  either  as  an  amendment,  if  that  is  a  proper  form  of  it, 
or  as  a  motion,  that  all  persons  engaged  in  the  employments 
covered  be  included  in  the  act,  without  regard  to  the  amount  of 
their  wages  or  salary. 

The  question  was  then  put,  and  the  motion  prevailed. 


Number  4.    Shall  Compensation  be  paid  in  a  Lump  Sum 
OR  in  Instalments? 

The  Chairman:  I  do  not  know,  gentlemen,  whether  you  want 
to  discuss  that  at  length  or  whether  you  are  ready  to  vote  on  it. 
I  think  I  will  consider  there  is  a  vote  to  adopt  each  of  these. 

Mr.  Lowell:  May  I  say,  first,  that  this  is  rather  intimately 
connected  in  my  mind  with  the  one  we  have  just  gone  over, — that 
is,  the  way  you  get  at  your  limit, — and  practically  covers  the  one 
we  have  been  over?  By  having  a  minimum  limit  of  three  or  five 
dollars,  or  whatever  you  say,  and  a  maximum  limit  of  weekly 
payments,  and  then  you  go  up  to  a  certain  number  of  weeks, 
and  then  your  maximum  of  all,  whatever  it  may  be,  three  thou- 
sand dollars.  For  instance,  you  have  your  maximum  of  ten 
dollars  a  week  for  three  hundred  weeks,  that  is  three  thousand 
dollars.    That  is  the  way  you  get  at  your  maximum. 

Mr.  Neill:  May  I  ask  if  this  question  only  applies  to  cases 
of  total  disability  and  death? 

The  Chairman:  No,  I  should  think,  whether  it  is  for  total 
or  partial  disability  or  death,  or  whatever  it  was,  the  question  is 


57 

whether  it  is  to  be  paid  out  in  instahnents,  like  wages,  or  paid 
in  a  lump  sum. 

Mr.  Neill:  If  you  are  paying  for  temporary  disability,  you 
can  only  pay  by  the  week,  for  the  reason  you  don't  know  how  long 
the  man  will  be  injured. 

The  Chairman:  But  under  the  present  common  law  you  can- 
not do  that. 

Mr.  Neill  :  You  would  pay  him  a  certain  percentage  of  wages 
in  cases  where  he  was  injured.  In  case  of  permanent  injury  or 
death,  it  seems  to  me  the  only  case  where  this  would  be  considered. 

The  Chairman:  Isn't  that  statement  just  a  little  bit  errone- 
ous? It  seems  to  me,  if  we  did  pay  in  a  lump  sum,  it  could  be 
settled  on  what  was  supposed  to  be  the  length  of  time  the  man 
would  be  out.  This  is  put  to  us  in  the  question  whether  we  favor 
a  lump-sum  settlement  or  instalments. 

Mr.  Neill:  The  great  majority  of  accidents  disable  a  man  for 
from  two  to  six  weeks,  a  certain  period  of  time.  You  do  not  know 
how  long  it  is  going  to  last  in  the  beginning,  and  the  great  ma- 
jority would  be  paid  on  the  basis  of  weekly  or  monthly  payments 
during  the  period  of  disability.  It  is  only  in  case  of  actual  death 
or  total  disability  the  question  would  arise  at  all  as  to  the  amount 
to  be  paid.  Suppose  I  have  a  broken  arm.  I  am  laid  up  for  a 
certain  period.  My  compensation  would  come  in  at  the  regular 
pay-days  during  the  period,  wouldn't  they? 

The  Chairman:  That  depends  whether  they  make  it  a  lump 
sum  or  weekly  payments. 

Mr.  Howard:  You  might  pay  two  thousand  dollars  for  a 
broken  arm  all  the  same. 

Mr.  Neill:  That  seems  to  me  unquestionable. 

The  Chairman:  Then  you  would  favor  the  basis  of  instal- 
ments, wouldn't  you? 

Mr.  Neill:  I  wouldn't  favor  either  one,  as  a  lump  proposi- 
tion. I  would  favor  instalments  for  temporary  disability,  and 
then  the  other  is  open  for  different  discussion  altogether.  My 
idea  is  to  divide  the  question.  My  motion  is  that  it  be  sub- 
divided: A,  for  temporary  disability;  B,  for  permanent  disability 
or  for  death. 

The  Chairman:  Is  there  a  second  to  that  motion? 

The  motion  was  seconded. 

Judge  Hollo  way:  Mr.  Chairman,  I  would  like  to  make  a 
suggestion  to  the  gentlemen.     The  experience  that  I  have  had  in 


58 

dealing  with  the  subject  of  compensation  has  been  from  the 
standpoint  of  the  man  who  has  the  last  say.  While  I  practised 
law  for  a  good  many  years,  I  never  had  any  experience  in  per- 
sonal injury  accidents.  I  acted  as  trial  judge  for  a  term,  but  did 
not  have  any  of  that  class  of  litigation,  but  during  my  term  of 
service  as  a  member  of  the  Supreme  Court  we  have  had  a  great 
deal  of  it.  You  can  readily  appreciate  that,  when  you  recall  that 
Butte  is  one  of  the  most  active  mining  camps  in  the  world.  We 
frequently  have  this  situation  presented  to  us:  A  man  is  injured. 
You  speak  of  it  being  a  temporary  injury  or  a  permanent  dis- 
ability, yet  it  is  impossible  to  tell.  At  the  expiration  of  a  year, 
you  may  not  be  able  to  tell  whether  it  is  going  to  be  a  permanent 
disability  or  whether  it  is  temporary.  And  for  that  reason,  it 
seems  to  me,  and  I  was  going  to  make  the  suggestion  that  was 
made,  that  I  would  make  the  division  into  three  classes  instead 
of  two.  If  you  pay  on  the  basis  of  instalments,  those  payments 
will  continue  during  the  disability,  not  exceeding  a  certain  length 
of  time.  Now,  if  it  is  a  temporary  disability,  it  would  continue 
until  the  disability  is  removed,  we  will  say.  If  it  is  a  disability, 
the  nature  of  which  cannot  be  determined  at  first  glance,  you  will 
run  that  along,  say,  for  one  year,  and  then,  if  investigation  dis- 
closes that  the  man's  disability  is  going  to  be  permanent, — then 
you  have  a  basis  for  determining  the  amount  of  his  payment.  But 
in  either  instance  I  would  make  the  payment  to  the  man  who  is 
temporarily  disabled  or  the  man  who  is  permanently  disabled 
on  the  instalment  plan.  But,  in  the  case  of  the  man  who  is  perma- 
nently disabled,  I  would  give  him  the  option  to  have  it  commuted 
by  payment  of  a  lump  sum  after  it  is  determined  that  his  injury 
is  going  to  be  permanent.  But,  until  it  is  permanent,  you  cannot 
say  what  amount  of  recovery  he  ought  to  have,  and  for  that 
reason,  I  think,  the  subject  here  is  logically  naturally  divided  into 
three  divisions. 

The  Chairman:  Just  let  me  ask  you  a  question,  if  you  don't 
mind.  What  do  you  think  about  the  necessity  of  requiring  it, 
in  case  of  permanent  injury,  to  be  paid  on  a  wage  basis  or  instal- 
ment plan  as  perfectly  fair  to  the  man  and  his  family?  As  a 
matter  of  fact,  would  not  the  average  man,  who  receives  this 
money,  be  a  man  who  is  not  accustomed  to  handling  funds,  and, 
if  he  gets  it,  it  would  go  into  some  venture  and  he  would  lose  his 
money? 

Mr.  Neill  :  Of  course,  that  is  a  condition  that  is  likely  to  arise 


59 

(even  in  the  case  of  men  who  are  used  to  handhng  money.  [Laugh- 
ter.] 

Judge  HoLLOwAy:  I  will  admit  that.  In  drafting  the  bill  to 
which  I  referred  a  few  moments  ago,  and  for  the  benefit  of  coal 
miners,  the  coal  miners  themselves  were  the  originators  of  the 
scheme,  and  they  considered  this  question  very  thoroughly  from 
their  standpoint;  and,  when  it  was  before  the  Legislature,  it  was 
considered  from  the  standpoint  of  the  coal  miner  more  liberal 
than  the  employer,  and  they  preferred  the  system  that  I  have 
just  indicated.  For  instance,  the  coal  miner  out  there  will  make 
from  three  to  four  dollars  and  a  half  a  day,  but,  in  case  he  is  dis- 
abled, he  draws  one  dollar  a  day,  not  to  exceed  three  thousand 
dollars,  which  is  fixed  as  the  limit  in  the  case  of  death,  and  that, 
of  course,  is  the  maximum.  Now  that  is  paid  to  him  weekly  at 
pay-days.  He  gets  a  dollar  a  day.  But  at  any  time  during  the 
period  of  his  disability  it  may  be  commuted  by  the  payment  of 
a  gross  sum  not  exceeding  three  thousand  dollars. 

Mr.  Gillette:  At  whose  option? 

Judge  Hollo  way:  It  would  probably  be  at  the  option  of 
either  party.  I  don't  know  that  the  law  states.  You  cannot 
deny  a  man  the  right  to  receive  the  amount  in  a  lump  sum  if  he 
wants  to, — that  is,  his  wife  and  family  that  have  come  into  exist- 
ence by  his  act  must  take  their  chances  with  him;  but  it  offers  to 
them  the  opportunity  to  receive  the  amount  upon  the  instalment 
plan,  and  a  great  many,  I  think,  would  take  advantage  of  it. 

The  Chairman  :  Have  you  had  this  question  out  in  Montana? 
Any  question  there  as  to  whether  or  not  over-zealous  adjusters 
representing  insurance  companies,  or  claim  agents  representing 
the  mines,  will  use  their  power  of  settlement  to  induce  the  fellow 
to  compromise  a  claim  that  ought  not  to  be  compromised? 

Judge  Holloway:  No,  as  I  said,  our  coal  mining  act,  which 
is  the  only  one  that  we  have  that  bears  any  resemblance  to  the 
one  we  are  discussing,  has  been  in  effect  only  since  the  first 
of  October,  and  there  are  no  statistics  available  to  me. 

Mr.  Bailey:  I  suppose  we  all  agree  that  we  want  the  money 
to  go  in  the  way  in  which  it  will  do  most  good.  I  think  that  for 
temporary  disability  and  permanent  disability  undoubtedly  the 
money  would  do  the  most  good  if  it  was  paid  every  pay-day. 
It  seems  to  me  that  the  same  is  true  in  case  of  death.  I  am 
not  talking  about  constitutional  questions.  I  am  assuming  we 
can  take  away  from  the  workman  the  right  to  have  it  in  a  lump 


60 

sum.  If  we  can,  we  should  do  it  for  this  reason:  a  man  is  dead 
and  gone,  and  has  a  wife  and  children,  and,  if  that  man's  salary 
can  be  given  to  them,  it  will  last  longer  and  do  the  most  good. 
My  wife,  some  time  ago,  was  called  upon  to  raise  a  little  money 
for  a  family  in  distress,  and  she  got  twenty-five  dollars,  and  took 
it  down  to  the  widow,  and  she  went  down  the  next  day  to  see 
what  they  had  done  with  it,  and  they  had  bought  a  door  plate. 
[Laughter.]  I  do  believe  it  is  very,  very  important  that,  if  pos- 
sible, the  amount  allowed  in  case  of  death  should  go  in  the  shape 
of — I  won't  say  annually,  because  it  ought  to  be  paid  often, 
but  it  should  go  so  that  it  won't  be  all  squandered  at  once.  I 
do  think  we  ought  to  have  the  instalment  plan  just  as  far  as  we 
can. 

Mr.  Doten:  I  got  a  little  insight  into  this  in  England  from 
reading  those  consular  reports  you  were  speaking  of,  and  it  is  a 
growing  practice  over  there  to  have  a  lump  sum  paid  into  the 
court,  and  to  have  it  doled  out  to  the  beneficiary.  An  added 
reason  for  making  the  payment  in  instalments  is  to  discourage 
the  activity  of  the  speculative  solicitor.  If  there  is  no  large  sum 
to  be  obtained,  there  is  not  so  much  interest  for  the  lawyer  to 
over-persuade  his  client  to  take  a  lump  sum. 

Mr.  Dickson:  If  this  were  a  question  of  the  funds  being  paid 
out  by  state  insurance,  I  think  there  would  be  no  question  that 
the  instalment  plan  would  be  the  best.  But  you  have  to  take 
this  into  account.  Mr.  Lowell  suggested  an  instance  in  which 
ten  dollars  a  week  might  be  paid  for  three  hundred  weeks.  The 
payment  of  that  sum  is  dependent  on  the  solvency  of  the  employer. 
What  guarantee  have  you  that  the  average  employer  is  going  to 
be  solvent  for  six  years? 

Mr.  Bailey:  I  meet  that  by  providing  the  money  shall  be 
paid  into  court.  We  know  the  employer  wants  to  have  it  over 
and  done  with,  and  make  his  dividend  at  the  end  of  the  year. 
Now  a  man  is  killed,  and  there  is  going  to  be  two  thousand  dollars 
paid.  I  provide  it  shall  be  paid  to  the  personal  representative 
in  the  first  instance,  and  then  shall  be  administered  by  a  guardian 
ad  litem.  Let  the  employer  get  his  receipt  in  full.  Let  the 
money  not  be  paid  into  court  exactly,  but  be  held  under  direc- 
tion of  the  court,  to  be  divided  as  the  dependants  need  it.  I 
think  that  can  be  done.  You  can  give  the  employer  his  receipt 
in  full,  and  then  the  money  can  be  divided  in  some  practical  way. 

Mr.  Gillette:  Mr.  Chairman,  I  don't  believe  that  any  one 


61 

will  disagree  with  the  proposition  that  the  method  of  payment 
should  ultimately  be  by  the  annuity  or  pension  system,  but  I 
think  Mr.  Dickson  has  raised  a  very  pertinent  point,  which  is  not 
entirely  covered  by  what  the  other  gentleman  has  said.  I  refer 
to  this  matter,  the  basis  of  determining  with  any  degree  of  cer- 
tainty what  the  operation  of  any  of  these  prospective  acts  will 
cost  as  an  insurance  or  an  insurable  proposition.  I  had  a  very 
interesting  talk  with  Dr.  Zacher  on  this  subject.  You  know  the 
experience  they  had  in  Germany.  They  were  prime  movers  in 
this  sort  of  legislation,  and  had  no  experience  to  go  on,  and  par- 
tially for  that  reason,  and  partially  for  reasons  of  expediency  and 
not  to  meet  the  opposition  of  the  German  employer,  they  made 
no  provision  for  a  sufficient  reserve.  Austria  attempted  to 
do  it,  but  she  failed  signally,  and  her  reserve  has  been  entirely 
inadequate  to  take  care  of  the  deferred  obligations  which  were 
due  under  the  law.  Now  we  have  no  statistics  in  existence  in 
this  country  to  tell  anything  about  what  the  probable  duration 
of  a  certain  class  of  disability  will  be.  We  know  very  little  about 
the  life  expectancy  of  the  average  American  workman  who  is 
partially  disabled.  In  fact,  we  are  absolutely  destitute  in  this 
country  of  any  statistics  by  which  any  sort  of  an  intelligent  guess 
in  regard  to  the  expectancy  of  liabilities  under  the  deferred  annuity 
system  can  be  based.  I  asked  Dr.  Zacher  what  he  would  advise. 
''Well,"  he  said,  "I  think  it  would  be  wise  if  you  would  start 
out  with  the  idea  of  ultimately  getting  to  a  pension  system,  but 
be  a  little  wiser  than  we  have  been,  and  run  your  law  along  for 
five  years,  we  will  say  to  seven  years,  under  a  plan  of  lump-sum 
settlements,  so  you  will  have  some  experience  and  know  some- 
thing about  what  it  is  going  to  cost,  so  that  either  your  insurance 
companies  or  your  mutual  companies,  or  whatever  method  of 
insurance  you  settle  upon,  can  have  a  statistical  basis  upon  which 
to  form  some  estimate  of  the  cost."  Now  you  all  know  the  cost 
of  these  things,  of  the  Compensation  Act,  has  been  underesti- 
mated in  every  country  in  which  the  law  has  been  enacted.  The 
German  law^  started  in  1885,  and  Dr.  Zacher  and  Dr.  Manes 
estimate  that  the  cost  of  the  operation  of  that  act  will  continue 
to  increase  until  about  1960.  As  I  said,  the  Austrian  reserve  is 
really  insolvent  to-day.  The  only  solvency  there  is  about  either 
the  German  or  the  Austrian  system  is  the  compulsion  which  is 
behind  it,  and  that  means  passing  on  to  future  generations  the 
burden  which  ought  to  be  met  by  the  industries  of  to-day;   and 


62 

while  I  would  like  to  see  the  pension  system  established,  and  I 
believe  it  is  the  ultimate  thing  to  be  desired,  I  seriously  doubt 
whether  it  would  not  be  wisdom,  in  the  initial  acts  which  are 
passed,  and  until  experience  has  been  gained  in  this  country,  to 
start  on  a  plan  of  lump-sum  settlements,  and  thus  gain  a  statisti- 
cal experience  from  which  we  can  determine  somewhat  the  cost 
of  operation  of  these  acts.  I  just  submit  it  to  you  as  a  subject 
that  has  bothered  me  very  greatly. 

Mr.  Howard:  I  would  like  to  ask  what  difference  it  will 
make  whether  the  lump  sum  was  given  in  a  lump  sum  to  the 
employee  or  was  given  to  the  court  in  the  manner  Mr.  Bailey 
suggests,  and  then  given  out  piecemeal.  I  don't  see  how  it  af-^ 
fects  the  cost. 

Mr.  Neill:  Is  not  the  difficulty  Mr.  Gillette  is  figuring  on 
permanent  liability  to  continue  without  limit,  and  what  we  have 
been  discussing  here  is  limited  amount  to  be  paid  in  one  item  or 
thirty  or  three  hundred  items? 

Mr.  Gillette:  That  applies  also  to  both  partial  and  total 
disability,  which  are  not  permanent,  but  which  we  don't  know 
whether  on  the  average  they  will  continue  for  six  months  or 
whether  they  will  continue  for  nine  months,  or  whether  they  will 
continue  for  a  year  or  a  year  and  a  half.  It  is  only  by  the  law 
of  averages  that  the  whole  question  of  cost  can  be  determined. 

Mr.  Neill  :  It  seems  to  me  that  comes  up  in  question  5,  and  all 
we  have  been  discussing  here  is,  we  have  assumed  there  would 
be  a  total  amount  paid,  and,  having  given  that  item,  whether  it 
should  be  paid  all  at  once  or  in  instalments. 

Mr.  Gillette:  But  the  proposed  limit  applies  only  to  death 
and  permanent  disability. 

Mr.  Neill:  No,  it  applies  to  all. 

Mr.  Gillette:  The  maximum  amount  applies  to  all,  but  that 
is  not  the  great  element  in  the  cost,  the  greatest  element:  it  is 
the  payment  of  the  average  injuries,  partial  or  total,  but  not  per- 
manent. 

A  Member:  Maj^  I  suggest  that  if  we  are  agreed  that  the 
weekly  payment  is  best  for  the  workingman  (and  I  certainly 
am  convinced  that  it  is),  and  that  it  is  wise  to  allow  that  weekly 
payment  to  continue  for  a  certain  period,  then  at  the  option  of 
the  workingman,  at  the  option  of  the  employer,  or  either  the  one 
or  the  other,  allow  a  commutation  of  the  payments  to  become 
due,  to  be  made  for  a  lump  sum?     That  has  this  effect:    It  en- 


63 

ables  the  workingman  to  escape  the  importunities  of  the  bogus 
bond  investor  for  six  months.  He  has  time  to  turn  around  and 
think  what  he  is  going  to  do  with  that  money  when  he  gets  it; 
and  it  enables  him  at  the  same  time,  and  it  is  strongly  urged  by 
the  gentlemen  who  got  through  the  Maryland  law  affecting  mines 
— that  applies  to  the  gentleman  from  Montana,  too — that  in  the 
mining  districts  it  is  often  to  the  advantage  of  the  widow  to  have 
a  lump  sum.  Now,  if  you  give  her  a  period  before  she  can  get  a 
lump  sum,  it  will  do  away  with  the  disadvantages  that  grow  out  of 
a  lump  sum,  perhaps.  It  will  enable  her  friends  and  advisers  to 
get  around  her  and  advise  her  as  to  what  she  is  going  to  do  with 
the  money  when  she  gets  it.  In  England  it  has  been  found  that 
the  permanent  disabilities  are  entirely  the  most  costly  of  all  dis- 
abilities, and  the  commutation  to  a  lump  sum  has  been  put  under 
the  careful  supervision  of  the  court,  so  that  no  advantage  can  be 
taken  of  the  workingman.  It  has  been  safeguarded,  but  he  is 
allowed  to  have  his  lump  sum  at  the  end  of  a  certain  period,  and 
I  suggest  that  as  a  compromise  of  the  two  views  expressed  here 
this  afternoon. 

Mr.  Lowell:  There  is  one  point  that  has  not  been  touched  on, 
and  which  has  given  me  more  thought  than  anything  else.  As 
I  said  before,  it  is  the  small  employer  I  am  afraid  of,  the  effect  on 
him.  Now  Mr.  Dickson  has  talked  about  the  question  of  insol- 
vency or  bankruptcy.  It  seems  to  me  that  a  payment  by  instal- 
ments would  help  the  small  employer  in  two  ways:  In  the  first 
place,  it  will  enable  him,  instead  of  having  to  pay  down  three 
thousand  dollars  right  off,  which  might  bankrupt  him, — enable  him 
to  spread  that  over  three  hundred  payments  of  ten  dollars  each, 
which  it  might  be  very  easy  to  do.  Now  the  result,  it  seems  to 
me,  is  this:  If  you  say  to  Mr.  Small  Employer,  "You  must  pay 
the  three  thousand  dollars,"  the  result  is  he  goes  broke,  and  the 
employee  gets  nothing.  If  you  say,  "You  may  pay  ten  dollars  a 
week  for  three  hundred  weeks,"  he  may  be  able  to  tide  over  it. 
It  is  better  for  him,  because  it  keeps  his  money  in  the  business 
instead  of  taking  it  all  out.  It  is  better  for  the  employee,  because 
the  employee  gets  something  instead  of  nothing.  That  is  one  part 
of  this  weekly  payment  plan  which  appeals  to  me  a  good 
deal. 

Mr.  Gillette:  Is  not  this  true,  though,  Mr.  Lowell,  that  any 
compensation  scheme  without  an  insurance  plan  is  pretty  nearly 
a  failure,  and  consequently  you  have  got  to  depend  upon  the  small 


64 

employer  insuring  himself  somehow  or  other,  and  spreading  this 
over  a  large  area  of  time  to  take  care  of  that? 

Mr.  McEwen:  Is  not  he  subject  to  the  same  danger  under  em- 
ployers' liability  to-day?  If  he  gets  a  verdict  against  him  of 
twenty  thousand  dollars,  he  is  out  of  business. 

Mr.  Lowell:  Yes,  but  I  want  to  get  rid  of  that  under  my  new 
law. 

Mr.  McEwen:  I  found  in  my  investigations  in  England, 
where  they  are  not  in  the  habit  of  using  as  large  sums  of  money  as 
the  workingmen  of  this  country,  a  nominal  sum  below  that  al- 
lowed under  the  law  is  held  out  to  a  widow  by  the  claim  agent 
of  the  insurance  company  who  is  aiming  to  make  good  returns 
to  the  company.  There  is  absolutely  no  human  element  in  it 
at  all.  The  ready  money  is  held  out  to  her  as  an  inducement. 
She  invariably  accepts  it,  and  soon  becomes  a  burden  on  society. 

A  Member:  Under  the  first  law  in  England  that  was  so. 
Under  the  second  law  they  put  that  under  the  control  of  the 
court,  and  a  release  is  not  binding,  and  the  court  can  set  it  aside. 

Mr.  McEwen:  I  am  unalterably  opposed,  from  a  labor  stand- 
point, to  the  lump-sum  payment,  unless  after  a  court  of  review 
and  on  the  court's  investigation  of  the  condition  of  the  family  it 
found  a  lump  sum  would  act  for  the  benefit  of  the  family.  I  told 
at  the  Atlantic  City  Conference  the  story  of  a  switchman  who 
lost  a  leg.  He  lived  near  me.  He  was  awarded  ten  thousand 
dollars,  and  was  given  two-thirds  of  that  sum.  He  had  a  lot 
of  idle  time  on  his  hands.  He  couldn't  work  as  a  switchman  any 
more.  Because  of  his  idleness  he  went  about  town,  and  in  the 
saloon  was  a  card-table,  and  the  boys  played  cards;  and  he  sat 
there  and  played  cards,  which  he  did  not  have  time  for  when  he 
was  an  able-bodied  man,  and  soon  that  fortune  was  frittered 
away  and  his  family  became  a  burden  on  society.  We  ought  to 
guard  against  such  a  condition  in  the  interests  of  a  man  and  his 
family  and  society.  Mr.  Gillette  refers  to  the  German  plan,  and 
to  Dr.  Zacher's  opinion  as  to  the  propriety  of  adopting  a  reserve 
fund  for  mutual  companies  here.  I  can  readily  understand  in 
Germany,  where  the  compensation  extends  over  the  entire  period 
of  disability,  how  that  might  be  advisable.  But  here,  under 
every  scheme  that  has  been  advocated  among  the  several  State 
Commissions,  there  is  to  be  a  limit  of  liability,  and  we  shall  not  have 
that  situation  to  contend  with  such  as  they  have  in  Germany. 

Mr.  Howard:    Mr.  Chairman,  I  fully  indorse,  from  the  em- 


65 

ployers'  standpoint  personally,  the  last  speaker's  opinion.  I 
think  in  every  case  we  ought  to  guard  against  a  lump  sum.  If 
you  eliminate  the  lump  sum,  it  takes  away  the  greatest  induce- 
ment to  have  lawyers  come  in  and  try  to  pettifog  matters  for 
the  sake  of  getting  a  share  of  the  lump  sum.  If  the  employee  is 
only  getting  five  or  six  dollars  a  week  over  a  continuing  period, 
and  that  is  paid  directly  to  the  employee,  there  is  very  little 
chance  for  a  lawyer  to  come  in  and  get  a  share  of  it.  He  has  to 
fight  hard  to  get  it.  There  is  only  one  case  that  I  think  of  where 
payments  might  be  commuted,  and  that  is  in  the  case  of  a  widow 
who  remarries.  In  Russia  the  law  provides  that,  if  a  widow 
remarries,  she  gets  a  lump  sum  of  three  years'  payments  paid 
right  off.  Now  that  gives  her  a  good  deal  better  chance  to 
remarry  and  cease  to  be  a  burden  on  the  community,  and  it 
strikes  me  as  being  an  exceedingly  good  idea. 

Mr.  Alexander:  There  are  two  objections  to  the  lump-sum 
payment:  possibility  of  insolvency  of  the  employer,  also  the  un- 
desirability,  on  the  part  of  the  employer,  to  have  a  liability  hang 
on;  and  the  other,  that  it  may  be  entirely  desirable  and  neces- 
sary for  a  widow,  or  for  the  wife  of  a  totally  disabled  man,  to 
take  up  another  line  of  business  immediately.  There  may  be 
a  good  opportunity  for  it,  too.  Now,  if  we  leave  it  with  the 
court,  to  whom  the  insurance  company  or  the  employer  would 
immediately  turn  over  the  money,  the  court  could  make  instal- 
ments, or  commute  the  instalments  into  a  lump  sum  at  any 
time  after  six  months  It  would  be  entirely  safe  to  leave  it  to 
the  judgment  of  the  court  to  take  into  consideration  the  cir- 
cumstances that  exist  and  deal  justly  with  them. 

Mr.  Doten:  Mr.  Chairman,  I  have  here  a  transcript  of  an 
opinion  of  Mr.  W.  V.  Appleton,  secretary  of  the  General  Federa- 
tion of  Trade  Unions  of  England.  They  have  had  a  good  deal 
of  experience  over  there,  and  have  studied  the  matter  very  care- 
fully; and  he  says,  in  regard  to  this  matter,  that  he  favors  weekly 
payments,  but  that  after  six  months  there  should  be  the  privi- 
lege of  commutation.  And  Mr.  Sheldon,  another  prominent  labor 
leader,  voices  exactly  the  same  sentiments. 

The  Chairman:  I  came  away  from  Europe  with  the  impres- 
sion, just  as  a  great  many  of  us  had  before  we  went  over  there, 
that  lump-sum  pajonents  were  very  bad  in  the  beginning;  that 
we  ought  to  have  payments  on  the  wage  scale;  that  we  ought  to 
have  them  paid  less  than  they  would  earn  if  they  were  at  work. 


66 

There  are  a  good  many  advantages  to  that, — inducement  to  them 
not  to  waste  their  time,  get  back  to  work;  and  that  there  ought 
not  to  be  any  possibiUty  of  setthng  and  getting  a  lump  sum  unless 
there  was  something  special  after  a  considerable  time,  where  a 
court  could  see  that  they  could  use  this  money,  and  were  going 
to  use  it,  for  a  special  purpose  the  court  would  decide  was  bene- 
ficial,— not  leave  it  so  that  any  settlement  could  be  made  at  any 
time  on  application  to  the  court,  because  you  gentlemen  who 
practise  law  know  what  that  means.  A  person  wants  money. 
There  is  nobody  to  contest  it.  But  if  they  can  show  some  good, 
sufficient  reason  why  they  can  take  and  invest  it  in  a  suburban 
little  home,  or  in  something  that  the  court  can  see  is  a  good  busi- 
ness for  them,  something  substantial,  even  though  it  might  be 
in  a  particular  instance  in  setting  them  up  in  a  news-stand,  if 
a  man  had  only  one  leg,  or  something  of  that  sort,  then  I  think 
it  would  be  perfectly  proper;  but  I  would  be  opposed  to  any 
scheme  which  did  not  allow  it  to  run  as  a  special  sum  for  some 
time,  and  then  only  allow  the  court  to  exercise  his  judgment  in 
very  special  circumstances. 

Mr.  Dickson  :  But  you  would  have  the  money  paid  into  court, 
wouldn't  you? 

The  Chairman:  No. 

Mr.  Dickson:  Have  the  court  guarantee  the  solvency  of  the 
employer? 

The  Chairman:  Carry  that  out  by  an  insurance  plan. 

Mr.  Bailey:  This  is  very  crude.     [Reading.] 

"The  adjuster  is  the  person  appointed  with  large  powers  of  dis- 
cretion, equity  powers,  to  determine  all  these  questions,  and  he 
would  set  him  up  in  business,  if  need  be,  or  to  buy  a  little  home." 

The  Chairman:  Suppose  that  man  who  was  injured  should  be 
Mr.  Dickson  or  Mr.  Gillette  over  here,  what  would  you  think  of 
the  advisability  of  having  that  benefit  put  into  the  hands  of  a 
guardian? 

Mr.  Gillette:  I  would  think  mighty  well  of  it!     [Laughter.] 

Mr.  Bailey:  The  adjuster  has  got  every  power  of  saying  it 
shall  be  paid  over  if  it  is  wise  to  have  it  paid  over.  I  know  that  a 
short  time  ago  they  were  getting  up  a  fund  of  a  hundred  thousand 
dollars  for  the  benefit  of  President  Eliot,  of  Harvard  College, 
and  they  gave  him  a  life  interest.  I  never  knew  why,  whether 
they  thought  it  would  do  him  more  good.  I  think,  with  the  large 
powers  of  the  court,  the  guardian  would  take  care  of  that. 


67 

Mr.  Neill:  In  order  to  test  the  sense  of  the  meeting, — and 
I  assume  you  want  to  get  at  certain  principles,  and  we  cannot 
work  out  all  the  details, — I  move  that  the  Conference  recommend 
that  the  principle  of  instalments  be  approved,  with  the  proviso 
that  a  lump  sum  may  be  paid,  if  it  is  paid  into  court  or  some  duly 
constituted  body. 

The  Chairman:  Mr.  Neill,  are  you  moving  that  as  a  sub- 
stitute to  j^our  former  motion? 

Mr.  Neill:  Yes. 

The  Chairman:  Does  the  second  to  the  former  motion  ap- 
prove it? 

Mr.  Lowell:  Yes. 

Mr.  Gillette:  State  it  again,  please. 

The  Chairman:  That  the  Conference  recommend  the  in- 
stalment plan,  with  a  proviso  that  there  may  be  an  exception 
made  by  paying  the  money  into  court,  to  be  handled  under  its 
direction.     Are  you  ready  for  the  question? 

Mr.  Alexander:  How  do  we  guarantee  payments  by  the 
employer  who  does  not  insure? 

Mr.  Howard  :  I  hope  we  can  stand  for  the  principle  of  having 
all  sums  paid  in  instalments  and  no  commutations.  It  seems 
to  me  that  the  cases  where  commutations  can  be  arranged  with 
advantage  are  extremely  rare;  that  you  immediately  bring  in  a 
plan  which  may  introduce  a  good  deal  of  trouble;  that  a  person 
can  get  a  lump  sum,  even  though  the  time  at  which  it  is  given  be 
deferred.  Then  there  is  always  a  chance  for  them  to  borrow  the 
money. 

Mr.  Bailey:  It  is  not  assignable:  you  cannot  borrow  on  it. 

Mr.  Howard:  That  eliminates  that  objection.  But  it  does 
give  the  chance  for  a  lawyer  or  .an  insurance  representative  to 
come  in. 

Mr.  Bailey:  No,  the  court  is  there.  It  has  got  to  be  ap- 
proved by  the  court. 

Mr.  Howard:  But  is  it  not  possible  that  a  lawyer  could  be 
employed  to  argue  it  before  the  court? 

Mr.  Bailey:  No. 

Mr.  Howard:  Do  you  rule  out  lawyers  from  appearing  for 
workmen? 

Mr.  Bailey:  No,  you  cannot  do  that. 

Mr.  Howard:  Then  it  is  possible  for  a  lawyer  to  be  employed 
to  argue  before  the  court  for  commutation. 


68 

Then  you  also  make  the  court  the  judge  as  to  whether  the 
business  enterprise,  which  is  going  to  be  taken  up,  is  going  to  be 
a  profitable  enterprise.  Now  I  don't  know  what  the  feeling  of 
the  average  judge  would  be,  but  I  should  think  he  would  hesitate 
a  good  deal  in  passing  on  whether  or  not  a  new  business  enterprise 
is  going  to  be  successful. 

Mr.  Doten  :  Mr.  Chairman,  I  am  going  to  say,  in  spite  of  what 
the  gentleman  on  my  right  has  said  about  this  not  being  assess- 
able and  so  forth,  that  the  experience  of  England  is  that  it  does 
encourage  the  activity  of  the  ambulance-chaser, — whether  it  is  as- 
sessable or  not,  there  is  a  considerable  sum  available  out  of  which 
there  can  be  made  a  pretty  substantial  fee. 

Mr.  Starring  :  May  I  inquire  whether  the  court  could  not  also 
settle  the  amount  of  that  fee?  I  should  think  that  would  cover 
the  question  then. 

The  Chairman:  My  notion  is  that  the  bill  ought  to  cover  it; 
that  is,  if  you  make  your  liability  definite.  I  would  not  be  in 
favor  of  limiting  the  lawyer's  fee,  because  that  would  outlaw  the 
workman  practically. 

Mr.  Gillette:  I  was  told  there  were  many  hundreds  of  work- 
men who  were  keeping  little  shops.  They  have  commuted  their 
pensions,  and  were  keeping  little  shops,  and  by  the  investment 
of  their  capital  were  enabled  to  earn  something  with  it,  and  in 
a  very  large  number  of  cases  it  has  been  a  great  benefit. 

Mr.  Doten:  The  registrar  of  one  court  over  there  said  that 
most  cases  where  it  has  been  allowed  have  turned  out  disastrously, 
so  that  the  courts  are  now  following  the  practice  of  denying  this 
privilege  in  most  cases. 

The  Chairman:  Gentlemen,  we  are  almost  at  the  end  of  our 
hour,  but  I  want  to  ask  one  question  of  Mr.  Neill.  Mr.  Neill, 
would  you  feel  like  changing  that  motion,  so  that  it  would  not 
give  the  court  power  to  make  settlement  until  after  the  injured 
got  to  the  point  where  there  was  a  reasonable  basis  for  his  doing 
something? 

Mr.  Neill:  In  case  of  death  and  in  case  of  permanent  dis- 
ability, for  example,  not  only  the  question  of  stores,  but  it  may 
be  to  pay  for  a  boy's  schooling.  Oftentimes  where  a  widow  has 
several  children,  if  she  could  keep  them  through  college,  those 
boys  would  become  self-supporting.  Very  often  an  allowance 
for  two  or  three  years  might  enable  the  children  to  increase  their 
earning  power.     If  you  give  her  a  small  amount,  she  puts  the 


69 

children  to  work  immediately.  And  my  idea  was  to  leave  it 
under  the  protection  of  some  public  authority  as  elastic  as  pos- 
sible that  would  have  a  great  deal  of  discretion. 

Judge  Hollo  way:  I  don't  think  there  is  any  danger  to  be 
anticipated  from  leaving  this  matter  with  the  courts.  For  in- 
stance, you  take  it  in  our  case,  the  district  courts  correspond  with 
your  circuit  courts  here,  and  are  the  courts  having  probate  juris- 
diction. Now,  in  the  case  of  the  estates  of  minors,  we  have 
plenary  powers,  you  might  say.  We  can  direct  the  guardian  to 
invest  in  a  fund,  in  a  particular  enterprise,  to  loan  the  money  out, 
or  to  do  just  about  as  the  presiding  judge  sees  fit  to  direct,  and  it 
has  worked  very  well  in  the  State  of  Montana  now — twenty-one 
years  old,  I  believe,  to-day. 

The  Chairman:  Gentlemen,  we  congratulate  the  State  of 
Montana.  I  thoroughly  agree  with  you  that  the  power  of  trust 
arrangements,  of  trust  power,  and  so  forth,  is  well  handled  by  the 
courts;  but  it  has  seemed  to  me  that  where  there  is  a  special 
line  of  adjusters  grown  up  through  the  country,  as  they  have 
in  the  insurance  business  on  these  claims,  they  are  very  likely 
to  get  before  a  fellow  who  wants  his  money,  and  they  will  fish 
out  some  reasonable  reason  why  they  can  go  before  the  court 
and  make  a  showing  that  on  its  face  looks  very  good. 

Mr.  Gillette:  I  am  frank  to  say  this:  I  am  in  favor  of 
the  pension  system.  I  did  not  state  my  real  reason  why  I 
objected  to  it  at  the  present  time,  and  that  is  this:  I  have  had  in 
mind  that  what  we  ought  to  have  ultimately  or  immediately,  or 
at  least  as  soon  as  possible,  are  mutual  associations  of  employers 
to  carry  this  insurance,  and  I  do  not  see  how  under  a  continuing 
obligation  of  this  kind — that  is,  I  can  see  very  great  difficulty 
encountered  in  organizing  these  mutual  corporations  with  these 
continuing  obligations.  If  they  knew  they  could  commute  them 
until  they  could  get  their  expenses,  they  would  not  be  afraid  to 
go  into  them.  They  would  know  something  about  what  their 
liability  was,  how  long  it  is  going  to  last.  I  shall  not  object  to 
it  at  all. 

The  Chairman:  Gentlemen,  the  hour  is  up.  Are  you  ready 
for  the  question? 

Mr.  Schutz  :  May  we  have  it  stated  once  more? 

The  Chairman:  That  we  recommend  for  compensation  the 
instalment  plan,  subject  to  the  power  of  the  court  to  commute 
it  for  a  lump-sum  settlement  on  proper  showing,  and  to  control 


70 

the  fund  after  he  has  commuted  it,  as  I  understand.     Is  that 
right? 

Mr.  Bailey:  That  is  right. 

The  question  was  then  put,  and  the  motion  prevailed. 

Number  5.    Amount  and  Duration  of  Compensation? 

The  Chairman:  Will  somebody  make  a  motion  under  number 
5,  or  shall  we  consider  there  is  a  motion?     It  is  very  indefinite. 

Mr.  Alexander:  I  move  that  the  amount  and  duration  of 
compensation  be  considered  under  three  headings:  first,  tem- 
porary disability;   second,  permanent  disability;   third,  death. 

Judge  Hollo  way:  I  second  the  motion,  Mr.  Chairman. 

The  motion  prevailed. 

The  Chairman:  Now  will  some  one  make  a  motion  on  the 
temporary  proposition? 

Mr.  Neill:  May  I  suggest  a  further  division:  (A)  Tem- 
porary disability:   1,  total;  2,  partial. 

(B)  Permanent  disabilit}^ :   1,  total;  2,  partial. 

(C)  Death. 

The  Chairman  :  Who  wants  to  be  heard  on  that  first? 

Mr.  Alexander:  I  should  like  to  make  a  motion.  We  have 
heard  two  statements  to-day  that  we  should  bear  in  mind:  first, 
under  the  present  condition,  only  from  twenty-five  to  thirty-five 
per  cent,  of  what  is  paid  by  the  employer  goes  to  the  injured; 
second,  that  the  interests  of  the  small  employer  must  be  very  care- 
fully considered  and  safeguarded.  We  have  in  our  State  the  shoe 
industry,  which  works  on  an  extremely  small  margin,  and  the  vast 
majority  of  shoe  manufacturers  are  small  employers,  and  the  great- 
est amount  of  their  business  is  outside  the  State,  not  inside  the 
State.  Any  burden  of  any  magnitude  put  on  them  would  practi- 
cally put  them  out  of  business,  because  the  margin  of  profit  is 
small,  and  they  could  not  sell  their  shoes  with  the  cost  of  insur- 
ance added  to  the  cost  of  production  in  States  where  similar 
conditions  do  not  exist.  It  seems  to  me,  therefore,  that  we  may 
for  temporary  disabilitj^,  which  we  are  considering  now,  accept  a 
sliding  scale,  starting  perhaps  with  a  compensation  of  forty  per 
cent,  average  weekly  wage  for  a  period  of  six  or  ten  weeks;  then 
increase  the  compensation  by  fifty  per  cent,  for  another  period, 
which  may  bring  it  up  to  twenty-six  weeks  total;  and  then  finally 
increase  it  to  sixty-six  and  tw^o-thirds  per  cent,  up  to  the  final 


71 

limitation  of  one  year,  or  whatever  it  may  be.  In  this  way 
we  would  safeguard  the  interests  of  the  small  employer.  The 
largest  number  of  accident  cases  are  of  short  duration,  and  the 
insurance  rate,  therefore,  in  the  vast  majority  of  cases  would  only 
slightly  increase,  and  not  put  that  heavy  burden  on  the  em- 
ployer. On  the  other  hand,  the  employee  on  a  forty  per  cent, 
basis  would  surely  get  as  much  as  the  average  employee  now 
recovers  under  the  existing  laws.  And,  furthermore,  during  the 
first  period  of  six  or  ten  weeks,  every  employee  may  safely  be  pre- 
sumed to  have  laid  up  a  few  dollars  which  he  can  utilize  for  tid- 
ing himself  and  his  family  over  this  period.  But,  as  the  duration 
of  disability  increases,  his  savings  may  be  presumed  to  dwindle 
more  and  more,  and  finally  be  gone  altogether,  so  that  he  and 
those  dependent  on  him  have  to  rely  entirely  on  what  they  get 
as  compensation. 

Now  with  this  introduction  I  make  this  motion  in  substance, 
although  in  particulars  it  might  be  amended  somewhat:  that  the 
compensation  for  temporary  disability  shall  be  forty  per  cent,  of 
the  average  wage  for  a  period  of  ten  weeks;  fifty  per  cent,  of  the 
average  wage  for  an  additional  period  of  sixteen  weeks;  and  sixty 
per  cent,  of  the  average  wage  for  an  additional  period  of  twenty- 
six  weeks, — limiting,  therefore,  the  whole  to  fifty-two  weeks,  or 
one  year. 

Mr.  Bailey:  I  believe  we  should  begin  pretty  moderately. 
It  will  be  easy  to  increase  this  compensation  after  we  get  going, 
but  certainly,  until  we  know  where  we  are,  until  insurance  people 
know  where  they  are,  it  should  be  under  rather  than  above  what 
we  ultimately  hope  to  have.  I  notice  that  in  the  Federal  com- 
pensation law,  a  little  abstract  of  which  I  have,  they  are  very 
moderate.  It  does  not  go  beyond  twelve  months,  and  the  death 
payment  is  the  amount  of  the  year's  salary.  That  compared 
with  the  New  York  law  seems  very  moderate.  But  we  have  that 
precedent  for  us  to  go  on,  and  it  is  stated  that  that  is  working 
pretty  well,  and  that  covers,  of  course,  a  very  large  number  of 
Federal  employees. 

Mr.  Neill:  I  might  save  time  by  saying  that  we  have  the 
administration  of  that  act,  and  it  is  not  a  satisfactory  one  at  all. 
[Laughter.]  As  a  matter  of  fact,  no  one  has  considered  the  act 
who  does  not  agree  it  is  very  much  in  need  of  amendment. 

(Mr.  Lowell  in  the  Chair.) 

Mr.  Mercer:  1  would  like  to  make  a  motion  as  a  substitute, 


72 

and  I  will  say,  before  I  read  this,  this  is  a  plan  I  have  worked  on, 
and  you  may  not  agree  with  me  in  amounts,  but  it  works  out  this 
way. 

"  Section  3.  Compensation  allowed.  The  compensation  herein 
and  hereby  allowed,  if  established  as  herein  provided,  having 
arisen  out  of  and  in  the  course  of  such  dangerous  employment 
within  this  State,  shall  be  on  the  following  basis : — 

"(a)  For  immediate  death  or  for  death  accruing  within  five 
years  as  a  result  of  such  injuries,  or  for  injuries  causing  total  in- 
capacity for  that  service  for  five  years  or  more,  sixty  per  cent,  of 
the  amount  of  wages  the  injured  was  receiving  at  the  time  of  the 
accident  for  a  period  of  five  years,  provided,  such  payment  shall 
not  continue  longer  than  to  aggregate  three  thousand  dollars." 

That  covers  three  points.  A  man  dies  immediately,  he  is  killed 
immediately,  or  dies  within  three  years  as  the  result,  or  is  suffi- 
ciently badly  injured  to  be  totally  disabled  for  five  years. 

*'  (6)  For  total  or  partial  disability  for  less  than  five  years,  sixty 
per  cent,  of  the  wages  the  injured  was  receiving  at  the  time  of  the 
injury,  so  long  as  there  is  complete  disability  for  that  service,  and 
that  proportion  of  the  said  percentage  which  the  depleted  earn- 
ing capacity  for  that  service  bears  to  the  total  disability  when  the 
injury  is  only  partial  or  after  it  becomes  only  partial." 

I  guess  that  is  clear.  If  he  continues  totally  disabled  for  a  year, 
give  him  sixty  per  cent.  If  he  is  only  half  incapacitated,  give 
him  thirty  per  cent,  for  the  next  j^ear. 

"  (c)  In  addition  to  the  foregoing  payments,  if  the  injured  loses 
both  feet  or  both  hands,  or  one  foot  and  one  hand,  or  both  eyes, 
or  one  eye  and  one  foot  or  one  hand,  he  shall  receive,  during  the 
full  period  of  five  years,  forty  per  cent,  of  the  wages  which  he  was 
receiving  at  the  time  of  such  accident;  or,  if  he  loses  one  foot, 
one  hand,  or  one  eye,  the  additional  compensation  therefor  shall 
be  fifteen  per  cent,  of  his  said  wages;  or,  if  he  be  otherwise  maimed 
or  disfigured,  then,  for  such  maiming  or  disfigurement,  during 
the  time  it  shall  continue  not  to  exceed  fire  years,  he  shall  receive 
therefor  such  proportion  of  forty  per  cent,  as  such  maiming  or  dis- 
figurement bears  in  depleted  ability  in  the  employment  to  the 
relative  loss  of  the  members  specified  herein;  provided,  that 
in  no  case  shall  all  of  the  payments  received  herein  exceed  in  any 
month  the  whole  wages  earned  when  the  injury  occurs,  nor  shall 
the  said  forty  per  cent,  when  all  received,  or  any  portion  thereof, 
and  the  said  sixty  per  cent,  when  all   received,  or  any  portion 


73 

thereof,  continue  longer  than  to  make  all  sums .  aggregate  five 
thousand  dollars." 

Mr.  Alexander:  I  rise  to  a  point  of  order.  We  are  discuss- 
ing temporary  disability  only.  We  should  limit  ourselves  to 
the  matter  under  discussion. 

Mr.  Mercer:  All  right,  I  will  stop  on  that.  I  want  to  say, 
in  making  that  sixty  per  cent.,  my  idea  was  to  make  a  provision 
that  the  employer  might  keep  one-sixth  of  the  carrying  charges 
of  that  out  of  the  wages  of  the  workman,  so  as  to  make  it  fifty 
per  cent. 

Mr.  Doten:  I  would  Hke  to  ask  Mr.  Mercer  if  his  scheme 
is  not  more  burdensome  than  that  we  have  been  discussing  here. 
As  a  matter  of  fact,  you  are  putting  a  limit  of  three  thousand 
dollars  upon  it.  That  limit,  however,  might  be  attained  in  a 
much  shorter  period  by  one  person  than  by  another.  That  is, 
if  his  wages  were  high,  you  would  attain  that  amount  in  a  much 
shorter  time  than  under  what  we  might  call  temporary  disability. 

(Mr.  Mercer  in  the  Chair.) 

The  Chairman:  Take  a  conductor  on  a  train,  or  an  engineer, 
as  has  been  stated  here,  and  he  has  his  house  rented  and  his  ex- 
penses, and  he  gets  a  hundred  and  twenty-five  a  month.  You 
cut  him  down  to  ten  dollars  a  week,  and  he  has  immediately  to 
abandon  his  bills  and  cancel  his  lease  and  move,  and  he  cannot 
live  the  way  he  has  been  living  or  anything  like  the  way  he  has 
been  living.  He  might  live  in  some  other  condition  longer,  but 
I  think  that  sort  of  fellow  would  have  a  chance  to  adjust  him- 
self within  the  period  of  time.  Besides,  if  he  should  remain 
totally  disabled  for  seven  years,  he  would  get  no  more  than  a 
man  earning  fifteen  dollars  a  week,  because  it  would  continue 
for  the  same  length  of  time,  and  he  would  not  get  the  propor- 
tionate value  of  his  time  that  the  other  fellow  would. 

Mr.  Gillette:  Will  you  restate  your  motion? 

Mr.  Alexander:  My  motion  was  that  for  temporary  dis- 
ability there  shall  be  a  compensation  of  forty  per  cent,  of  the 
average  weekly  wage  for  not  more  than  ten  weeks;  and  fifty 
per  cent,  for  an  additional  sixteen  weeks,  if  disability  continues 
during  that  period;  and  sixty  per  cent,  during  an  additional 
twenty-six  weeks,  if  the  disability  continues  for  the  whole  year. 

Mr.  Bailey:  Mr.  Chairman,  I  always  supposed  it  was  part 
of  the  scheme  that,  if  the  adjuster  or  the  master  or  the  court 
finds  that  a   man  is  improving,  and  it  appears   at   the  end  of 


74 

the  ten  weeks  that  he  can  work  half-time,  of  course  he  is  not 
going  to  get  the  sixty  per  cent. :  he  is  going  to  get  the  difference 
between  what  he  can  earn  and  what  he  was  earning.  So  that 
that  wants  to  be  taken  into  account. 

Mr.  Dickson:  Under  your  motion  what  would  become  of 
the  man  on  the  fifty-third  week? 

Mr.  Alexander:  He  would  not  receive  anything.  All  com- 
pensation must  be  limited  to  a  certain  time.  Even  if  you  have  a 
permanent  disability,  you  limit  it.  Of  course,  I  can  concede 
the  case  that,  if  after  twelve  months  the  injury  proves  to  be  of  a 
permanent  character,  then  he  would  receive  further  compensa- 
tion under  the  clause  providing  for  permanent  disability. 

Mr.  Gillette:  I  don't  see  just  how  you  are  going  to  discuss 
this  first  clause  intelligently  without  subdividing  it  into  total 
and  partial  disability,  as  suggested  by  you. 

Practically,  every  compensation  act  with  which  I  have  any 
acquaintance  takes  into  consideration  the  decreased  earning 
power  of  the  individual,  and  if  he  is  able  to,  after  the  expiration 
of  a  short  time, — to  earn  something,  that  is  compared  with  what 
he  was  previously  earning,  and  the  reduction  in  his  earning  ca- 
pacity forms  the  basis  of  his  compensation  upon  the  scheme  upon 
which  it  is  based.  If  it  is  a  fifty  per  cent,  reduction  in  his  earning 
capacity,  it  would  be  fifty  per  cent,  of  the  difference  between 
what  he  can  then  earn  and  what  he  was  earning  previously. 

The  Chairman:  My  motion  covered  that,  but  there  was  not 
any  second. 

Mr.  Gillette:  Now  I  just  say  this,  that  I  don't  quite  see  the 
logic — I  am  an  employer,  and  look  at  it  from  an  employer's  side, 
but  I  do  not  quite  see  the  logic  of  trying  to  run  it  one  year  on 
temporary — well,  we  will  say  temporary  total  disability.  I  don't 
know  why,  if  you  put  the  limit  of  three  thousand  dollars  on  the 
total  amount  that  he  can  recover  for  any  sort  of  disability  that  is 
total,  permanent,  or  any  other  kind,  or  for  death,  that  is  not  a 
reasonable  and  safe  limit,  and  why  it  is  not  about  the  only  limit 
you  can  place  on  it.  I  thoroughly  agree  with  what  the  gentle- 
man who  made  this  motion  said  in  regard  to  taking  into  con- 
sideration the  whole  question  of  cost.  That  is  really,  outside  of 
the  constitutional  problem,  the  most  difficult  one  to  solve.  That 
is  to  find  the  way  by  which  we  can  frame  a  compensation  act  that 
will  follow  out  any  reasonable  measure  of  compensation  and  still 
get  it  down  to  a  point  where  the  industry  of  any  State  can  stand 


75 

it  until  all  the  surrounding  States  have  done  the  like  thing.  Now, 
personally,  I  think  that  I  am — well,  I  dislike  to  say  that  at  a 
Conference  of  this  kind,  but  I  will  say  this,  that  I  would  like  to 
see  the  darned  man  that  can  change  my  opinion;  and  that  is  this, 
that  I  am  almost  absolutely  sure  that  there  must  be  a  waiting 
period  without  any  compensation.     That  is  the  first  thing. 

The  Chairman:  That  comes  under  the  next  subdivision. 

Mr.  Gillette:  I  know,  but  I  am  just  using  that  in  the  dis- 
cussion of  this.  The  elimination  of  this  period  cuts  a  very  ma- 
terial and  marked  figure  in  the  question  of  determining  the  cost 
in  the  operation  of  the  payment  of  the  whole  compensation. 
Now  my  friend  McEwen,  who  represents  the  other  side  on  our 
Commission,  and  I  were  over  to  England  together,  and  every- 
where I  had  entree  to  sources  of  information  I  took  him,  and  we 
went  together.  Now  he  knows  that  the  experience  of  the  Eng- 
lish companies  is  this:  that  the  elimination  of  the  compensation 
for  the  first  week  practically  removes  the  payment  of  thirty-five 
per  cent,  of  the  accidents  which  occur;  that,  in  a  two  weeks' 
waiting  period,  practically  fifty  per  cent,  of  the  reported  accidents 
disappear  in  number.  I  do  not  mean  by  that  that  it  reduces  the 
cost  fifty  per  cent.,  but  in  the  number  of  reported  accidents  that 
disappear  during  that  period.  Now  I  do  not  believe  it  is  wise 
for  us,  and  I  say  this  measuring  my  words, — I  say  that  I  do  not 
believe  it  is  wise  for  us  for  permanent  total  disability  to  pay  less 
than  fifty  per  cent,  of  the  wages.  I  think  that  is  really  about  the 
mark  that  is  right,  for  two  reasons:  First,  its  effect  on  malinger- 
ing, because  the  payment  of  more,  coupled  with  the  benefits  they 
are  getting  from  the  other  benevolent  orders  to  which  they  belong, 
has  in  a  myriad  of  instances  brought  to  the  injured  workman  a 
vastly  greater  income  than  he  had  when  at  work,  and  the  result  is 
to-day  one  of  the  serious  questions  in  England.  At  the  same  time, 
while  it  should  not  be  more  than  this,  by  reason  of  the  evil  effects 
that  would  flow  from  it,  I  do  not  think  it  should  be  less  than  this, 
because  I  do  not  think  that  the  average  American  workingman 
can  sustain  himself  and  keep  his  family  from  becoming  a  public 
charge  on  less  than  that  amount.  Now  I  think  this.  Rather 
than  start  out  with  forty  per  cent.,  we  had  far  better  extend  the 
waiting  period,  and  in  that  way  the  least  injustice  will  be  done 
to  either  party.  I  am  in  favor  of  compensation  of  fifty  per  cent, 
based  on  total  disability,  and  grade  that  down  as  the  man  by 
reason  of  partial  recovery  is  enabled  to  earn  something,  and  thus 


76 

shorten  the  breach  between  his  former  earning  capacity  and  his 
earning  capacity  in  his  injured  condition;  and  I  think  that  ought 
to  be  continued  during  the  period  of  his  disability.  I  do  not  see 
any  logical  reason  for  cutting  that  out,  but  we  must  put  a  limit 
upon  the  ultimate  amount  which  can  be  paid.  And  the  same  thing 
which  will  apply  to  these  injuries  which  are  thought  to  be  tem- 
porary, but  continue  longer  than  has  been  expected,  would  apply 
to  the  permanent  disability  or  to  death. 

Mr.  Doten:  You  would  be  in  favor  of  combining  the  two? 

Mr.  Gillette:  Well,  I  mean  by  that  I  think  you  have  got  to 
make  your  provision  on  the  basis  of  paying  fifty  per  cent,  of  wages 
for  the  period  of  disability,  with  the  ultimate  limit,  but  reducing 
the  fifty  per  cent,  as  you  are  able  to  show  that  the  man  is  able 
to  do  some  jobs,  while  he  secures  less  wages. 

Mr.  Doten:  In  proportion  to  his  incapacity. 

Mr.  Gillette:  Yes. 

The  Chairman:  That  is  the  same  proposition  made,  except 
you  put  fifty  instead  of  sixty  per  cent. 

Mr.  Gillette:  I  don^t  know  but  I  might  just  as  well  say  what 
I  have  to  say  about  that,  because  I  am  reasoning  backwards. 
It  is  this:  I  have  tried  to  take  the  cloth  and  see  what  we  could 
make  out  of  it,  and  I,  as  most  of  you  know,  have  devoted  a  very 
great  amount  of  study  to  the  question  of  cost  of  this  thing,  and 
I  have  not  been  able  to  figure  out  any  way  by  which  you  could 
pay  the  English  scale  of  compensation  with  a  two  weeks '  waiting 
period,  exempting  the  illegitimate  descendants,  as  they  do  not 
in  England,  and  exempting  the  ahen  descendants,  as  we  ought 
to  do  in  this  country,  because  we  have  no  desire  in  Minnesota 
to  take  care  of  either  the  ascendent  or  descendent  dependants 
who  are  resident  in  Italy  or  Bohemia,  with  a  contribution  of 
twenty  per  cent,  from  the  workingman,  and  limiting,  say,  to 
about  six  years  the  payment  for  death  or  total  disability;  and 
then  I  believe  it  is  going  to  cost  us  at  least  double  under  a  single 
Uability  what  it  is  costing  us  at  the  present  time  for  liability  in- 
surance. 

Now  there  is  another  thing — 

Mr.  McEwen:  Pardon  me,  you  are  basing  this  upon  the  pre- 
sumption that  the  number  of  accidents  is  going  to  remain  the 
same  as  it  is  to-day? 

Mr.  Gillette:  No,  I  am  not.  I  think  there  will  be  somewhat 
of  a  decrease.     There  will  be  a  decrease  in  certain  kinds  of  ac- 


77 

cidents,  there  will  be  a  vast  increase  in  partial  disability  claims,  a 
vast  increase  in  those.  That  is  the  experience  wherever  com- 
pensation acts  have  come.  There  will  ultimately  be  a  slight 
descending  scale  in  the  number  of  permanent  total  disability 
accidents  and  deaths.  That  has  been  shown.  But  I  am  basing 
that,  too,  on  a  single  Hability,  and  I  would  add  twenty-five  per 
cent,  to  the  cost  of  it,  if  you  leave  the  elective  feature  of  letting 
the  employee  choose  between  them;  that  is,  allow  him  to  seek  his 
recovery  under  common  law  or  under  a  compensation  act  or 
under  the  employers'  liability  statute. 

Now  there  is  just  one  other  thing  I  want  to  say,  and  it  is  this: 
it  is  in  the  form  of  an  apology.  I  have  said  just  exactly  what  the 
gentleman  has  said,  I  have  said  it  a  number  of  times,  called  atten- 
tion to  the  fact  of  the  low-loss  ratios  of  the  liability  companies. 
Those  loss  ratios  run  from  thirty-five  to  forty  per  cent.  But 
our  loss  ratios  are  not  only  steadily  increasing,  but  our  loss  ratios 
in  Minnesota  in  1909  were  sixty-eight  per  cent,  of  the  premium 
receipts.  The  point  I  make  about  this  waiting  period  and  cutting 
that  out  is  this :  the  benefits  it  conveys  are  entirely  out  of  propor- 
tion to  the  cost  of  investigating  the  claim  and  the  cost  attendant 
upon  those  accidents. 

Mr.  McEwen:  Right  there  I  would  like  to  ask  Mr.  Gillette 
a  question  or  two.  Have  j^ou  heard  whether  or  not  this  year 
the  insurance  companies  have  had  a  lower  loss  ratio  in  Min- 
nesota? 

Mr.  Gillette:  The  insurance  companies  had  a  meeting  in 
Minneapolis  a  couple  of  weeks  ago,  and  advanced  the  rate. 

Mr.  McEwen  :  How  much? 

Mr.  Gillette  :  I  don't  know. 

Mr.  McEwen:  I  have  learned  there  will  be  a  fifteen  per  cent, 
increase.  I  have  considerable  relation  with  the  agents  of  Em- 
ployers' Liability  Companies,  and  many  of  them  have  admitted 
to  me  that  they  expect  to  make  some  money  in  Minnesota  this 
year,  where  they  did  not  last  year,  and  I  think  it  is  due  largely 
to  the  fact  that  the  number  of  serious  accidents  is  decreasing 
there.  And  I  want  to  state  further,  too,  it  may  be  all  right  for 
us  to  agree  here  upon  such  a  low  compensation  to  the  injured 
workingman,  but  you  will  never  be  able  to  get  the  rank  and  file 
of  workingmen  of  this  country  to  accept  this  sort  of  a  compen- 
sation in  lieu  of  their  present  common  law  right  of  action.  It 
will  never  get  through  the  Legislature,  and  they  will  be  aided 


78 

in  their  contention  by  the  ambulance-chasers,  who  are  growing 
in  number. 

The  Chairman:  What  is  that,  Mr.  McEwen? 

Mr.  McEwen:  The  whole  thing,  fifty  per  cent,  compensation. 

The  Chairman:  This  proposition  is  forty. 

Mr.  McEw^en  :  Absolutely  ridiculous. 

The  Chairman:  Forty  per  cent,  for  the  first  ten  weeks,  and 
fifty  per  cent,  for  the  next  ten  weeks,  and  sixty  per  cent,  for  the 
next. 

Mr.  Alexander:  I  should  like  to  get  Mr.  McEwen's  view-point 
of  what  would  not  be  ridiculous. 

Mr.  McEwen:  I  appreciate  somewhat,  because  of  our  dual 
form  of  govermnent,  the  things  we  have  to  contend  with,  and  the 
purpose  of  this  Conference  is  to  remove  such  a  question.  It 
would  be  a  fine  thing,  if  we  could  agree  upon  a  principle  in  law 
that  could  be  adopted  by  all  of  the  States  represented  here,  to 
give  labor  a  little  more.  I  would  be  willing  to  agree  that  the 
laborer,  if  he  is  going  to  surrender  his  common  law  rights,  would 
go  without  compensation  for  three  weeks.  I  think  he  could 
finance  his  disability  for  three  weeks,  ordinarily,  but  after  that, 
during  the  entire  period  of  incapacity,  he  ought  to  receive  at 
least  sixty-six  and  two-thirds  of  the  amount  he  was  earning,  with 
a  fixed  minimum  and  maximum  amount.  I  know  many  of  the 
States  have  a  five-thousand-dollar  death  limitation.  Yet  we 
know  how  that  death  limitation  was  put  through  the  Legislature 
of  our  State.  It  was  put  there  in  spite  of  the  protest  of  labor,  and 
I  think  anything  short  of  five  thousand  dollars  now  would  be 
unfair.  We  simply  have  to  adjust  ourselves  to  meet  it.  I  con- 
scientiously believe  that  with  proper  and  adequate  inspection, 
such  as  an  insurance  scheme  and  workingman's  compensation 
act  will  compel,  we  can  reduce  the  number  of  accidents  that 
now  occur,  by  one-half,  in  every  State  in  this  Union.  If  we  are 
going  only  to  allow  compensation  for  just  a  short  period  of  time 
for  total  disability,  after  that  is  spent,  then  the  injured  falls  a 
burden  upon  society,  and  that  ought  to  be  avoided.  Yet,  if 
industry'  cannot  bear  it,  why  not  call  upon  the  State  to  help  bear 
it?  In  our  county  in  Minnesota  sixty  per  cent,  of  the  time  of 
our  courts  is  spent  on  master  and  servant  cases.  Suppose  we 
save  the  forty-two  thousand  dollars  it  now  costs  annually  in  that 
county,  and  let  it  go  into  a  fund  to  help  compensate  the  injured 
workingmen.      Why  ask  labor  to  make  all  the  sacrifice? 


79 

Mr.  Bailey:  I  will  allow  that  Mr.  Alexander's  idea  of  making 
a  sliding  scale  may  be  a  very  good  one,  but  it  has  this  objection, 
complexity,  when  above  all  things  we  want  simplicity.  Now  a 
flat  rate  of  fifty  per  cent,  can  be  understood  by  everybody,  and 
for  that  reason  I  should  therefore  favor  Mr.  Gillette's  idea  of 
fifty  per  cent,  right  along  rather  than  to  have  a  sHding  scale. 

The  Chairman:  I  would  like  to  suggest  that  I  disagree  with 
this  view  for  several  reasons.  In  the  first  place,  I  think  the  matter 
Mr.  Bailey  suggests  is  a  permanent  wrong.  In  the  second  place, 
I  think  the  scheme  is  one  which  is  an  inducement  to  a  man  to 
stay  sick.  He  gets  his  percentage  of  the  wage  pay  the  longer 
he  is  sick.  In  all  these  European  countries  they  have  found  the 
best  thing  they  can  do  is  to  induce  a  man  to  get  well  by  getting 
less  money,  if  he  can  stand  it.  I  do  not  know  of  any  reason  why 
the  gentleman  should  take  the  position  that  this  temporary 
disability  ought  to  stop  at  the  end  of  twelve  months,  whether  the 
man  is  well  or  not.  If  one  man  is  going  to  get  five  years  for 
being  permanently  disabled,  or  ten  years,  if  you  want  to  extend 
it  to  that  extent,  why  should  we  stop  the  other  fellow  when  he 
reaches  the  end  of  one  year?  We  are  certainly  making  a  dis- 
tinction there  that  is  not  proper.  Solely  because  a  man  may  not 
be  hurt  so  badly  as  another,  we  ought  not  to  shut  him  off,  if  he  is 
still  hurt.  And,  personally,  I  was  prepared  to  see  the  limit  made 
sixty  per  cent.,  see  one-fifth  contributed  by  the  workingman,  and 
the  time  limited  to  five  years,  rather  than  make  it  ten  years  and 
fifty  per  cent.  I  think  it  would  cost  a  little  more,  because  two- 
fifths  of  the  cases  would  be  out  of  the  way  at  the  end  of  the  fiirst 
two  weeks.  I  should  agree  to  a  two  weeks'  waiting  period.  I 
should  say  there  ought  not  to  be  any  payment  for  that  waiting 
period,  but  a  man  certainly  needs  more  during  the  first  months  of 
his  injury,  when  they  have  doctor  and  hospital  bills  to  pay,  and 
medicine  bills  to  pay  for,  than  he  does  after  he  has  been  sick  ten 
weeks  and  those  things  are  all  out  of  the  way;  and,  personally,  I 
should  pay  him  according  to  a  wage  basis,  limited  in  time,  allow 
him  to  only  recover  on  that  basis,  so  long  as  he  was  injured,  pro- 
portionately. If  he  gets  over  half  of  his  injury  in  three  months, 
reduce  it.  In  France  they  have  had  an  illustration  of  that.  They 
have  a  law  that  provides,  if  a  man  is  sick  for  seven  days  as  a  result 
of  his  injury,  he  shall  get  nothing;  if  he  is  sick  eight  days,  then  he 
gets  pay  for  eight  days.  The  result  is  that  almost  every  fellow  is 
sick  eight  days;  and  the  more  a  man  is  paid,  the  more  he  is  likely 


80 

to  remain  sick.  They  find  it  necessary  to  limit  the  insurance  so 
he  cannot  earn  more  by  being  ill  as  the  result  of  the  accident  than 
by  being  well.  They  limit  the  amount  of  insurance  he  can  take. 
They  make  it  an  inducement  to  get  well  and  not  to  stay  sick. 
They  simplify  the  proposition  all  they  can  to  start. 

Mr.  Gillette:  May  I  suggest  one  thing  that  has  not  been 
taken  into  consideration?  It  seems  to  me  as  if  it  enters  right  into 
the  amount  of  compensation,  and  that  is  the  amount  of  hospital 
and  surgical  attendance,  or  first  aid.  Now  I  have  sometimes 
thought  that  for  the  workingman,  take  it  between  two  or  three 
weeks,  that  is,  I  mean,  for  a  waiting  period,  it  might  be  better  to 
make  that  three  weeks  and  give  him  free  hospital  attendance 
during  that  waiting  period. 

The  Chairman  :  That  brings  up  a  question  that  is  not  here,  and 
that  is  the  doctor  question. 

Mr.  Gillette:  That  is  one  of  the  elements  of  compensation. 
I  am  mentioning  it  now  as  compensation.  I  seriously  believe 
that  the  best  effects  would  fiow  from  it  by  making  a  provision 
of  that  kind. 

The  Chairman:  Do  you  mean  by  your  suggestion  fifty  per 
cent.,  and  pay  the  doctor's  bill  besides  that? 

Mr.  Gillette:  Fiffcy  per  cent.,  and  then  make  the  waiting 
period, — oh,  I  don't  know  what  it  would  figure,  but  as  between 
two  and  three  weeks  extend  it  enough  days  to  offset  the  cost 
of  that  hospital  and  medical  attendance. 

The  Chairman  :  We  have  spent  half  our  hour  discussing  the 
first  subdivision  of  our  question. 

Mr.  Dickson:  I  should  like  to  offer  an  amendment  to  Mr. 
Alexander's,  that  this  be  made  fifty  per  cent.,  without  any  limit 
except  the  limit  we  mean  to  put  on  all,  three  thousand 
dollars. 

Mr.  Howard:  With  no  waiting  period? 

Mr.  Dickson:  That  comes  later. 

Mr.  Gillette:  Supposing  a  man  is  able  to  go  back  to  work. 

Mr.  Dickson:  Touching  on  that,  I  think  it  would  introduce 
a  very  complicated  feature,  if  you  undertake  to  determine  that, 
after  four  weeks;  and  then,  if  a  man  was  only  partially  disabled, 
you  would  introduce  an  element  of  discord. 

Mr.  Gillette  :  So  far  as  my  observation  goes,  it  has  operated 
entirely  differently.  That  is,  the  employer  has  been  anxious 
to  give  that  man  a  job  at  some  light  work  he  can  do  at  reduced 


81 

wages,  and  it  has  encouraged  other  men  to  hurry  up  and  get  back 
to  work. 

Mr.  Doten:  I  would  like  to  amend  the  amendment  made  by- 
Mr.  Dickson  to  the  effect  that  this  compensation  should  not 
exceed  ten  dollars  a  week,  and  a  sum  total  not  to  exceed  three 
thousand  dollars. 

Mr.  Dickson:  I  will  accept  that. 

Mr.  Doten:  I  want  to  say  in  regard  to  that  matter  that  I 
feel  that  it  is  unsafe  to  leave  simply  the  three-thousand-dollar 
limit,  because  we  can  conceive,  under  the  agreement  that  we 
reached  on  number  4,  that  a  twelve-thousand-dollar  man  might 
be  injured,  and  his  compensation  would  be  five  hundred  dollars 
a  month.  It  would  not  take  long  to  get  three  thousand  dollars 
on  that  basis,  and  I  think  that  such  men  can  adequately  provide 
for  themselves  outside  of  this  compensation,  that  the  total 
amount  payable  weekly  should  not  exceed  ten  dollars. 

The  Chairman:  That  would  be  forty-five  dollars  a  month  for 
an  engineer  earning  two  hundred  and  forty  dollars. 

Mr.  Doten:  I  assume  he  could  take  care  of  himself  in  some 
other  way. 

Mr.  Gillette:  I  wish  Mr.  Dickson  would  make  this  one 
change, — instead  of  half  wages,  half  his  impaired  earnings. 

Mr.  Neill:  If  you  are  looking  for  simplicity,  you  cannot 
complicate  it  more  than  by  saying  "impaired  earnings." 
In  the  question  of  temporary  disability, — we  are  discussing 
the  question  of  the  long  period  these  men  are  going  to  be 
injured — I  will  venture  the  rough  guess  that  in  eighty  per  cent, 
of  the  cases  the  injury  will  be  less  than  two  months,  so  that  we 
are  introducing  an  element  here  which  will  cost  very  little,  will 
complicate  the  bill  immensely,  and  will  get  the  solid  objection  of 
an  enormous  number  of  people  whose  support  we  have  got  to 
have  in  order  to  get  legislation. 

Mr.  Lowell:  It  seems  to  me  that  we  are  running  here  a  little 
bit  after  a  will-o'-the-wisp.  Whenever  anybody  brings  up  the 
question  of  making  some  little  change,  it  is  said,  "That  is  some- 
thing you  will  have  to  have  a  lawsuit  about,  you  have  got  to 
ask  somebody  about  it."  You  can't  get  an  act  through  about 
which  you  won't  have  lots  of  lawsuits.  If  the  proposition  is 
that  you  are  going  to  pay  a  man  half  wages  when  he  can  earn 
three-quarter  wages  all  the  time,  I  say  I  am  not  for  it.  There  is 
no  justice  in  it  on  either  side.    Suppose  you  have  got  to  go  to 


an  adjuster.  Let  us  go.  Let  us  provide  a  bill  with  that  provi- 
sion. Let  us  face  the  thing,  and  say  there  have  got  to  be  law- 
suits. There  has  not  got  to  be  a  jury,  probably,  but  you  have 
probably  got  to  have  some  one  to  say  what  this  thing  is  worth. 
The  reason  you  have  to  have  some  one  is  not  inherent  in  any 
workingmen's  compensation  act  or  any  insurance  act  or  anything 
else,  but  is  inherent  in  all  human  affairs,  because  we  are  not  ruled 
in  human  affairs  by  mathematics.  We  are  ruled  by  human  nature, 
and  human  nature  is  not  an  exact  science.  Now  let  us  go  at 
this  thing  that  way,  and  let  us  provide  a  bill, — not  that  an  ancient 
scholastic  scholar  sitting  in  his  cabinet  would  say,  "That  is  the 
product  of  great  minds,  and  there  is  no  logical  flaw  in  it," — let 
us  have  a  bill  which  will  bring  justice  as  near  as  we  can  get  it,  and, 
if  we  have  to  make  concessions  and  like  things,  let  us  do  it.  Let 
us  have  the  best  machinery  we  can,  but  let  us  get  at  it,  because 
this  is  a  practical  thing,  and  you  are  not  going  to  get  a  prac- 
tical thing,  if  you  get  what  is  logical  on  paper  and  is  not  practical. 

Mr.  Neill  :  What  is  to  be  the  test  of  his  earnings?  Is  a  man  to 
appear  before  somebody  and  testify  he  will  be  able  to  get  so 
much? 

Mr.  Gillette  :  I  mean,  I  have  a  man  working  for  me  at  four 
dollars,  and  he  gets  in  shape  in  ten  weeks,  so  he  can  come  back 
and  work  for  me  at  two  dollars  a  day.  Now,  I  say,  he  ought  to 
come  in  justice  to  himself,  he  ought  to  come  in  justice  to  me,  and 
the  additional  compensation  he  ought  to  draw  then  would  be 
one-half  the  difference  between  two  dollars  and  four  dollars  a 
day,  and  that  would  be  another  dollar,  and  that  would  be  three 
dollars. 

Mr.  Neill:  The  way  it  is  put,  he  would  have  his  rate  reduced, 
whether  he  could  get  a  job  or  not.  You  say  Mr.  So-and-so  is 
able  to  earn  so  much.  Mr.  So-and-so  has  not  got  a  position  be- 
cause of  the  injury  he  received  in  your  place.  If  you  want  to 
make  it  that  he  shall  pay  a  certain  amount,  and  if  he  can  help  to 
make  up  part  of  that  amount,  that  is  an  entirely  different  matter. 

Mr.  Rohr  :  In  investigating  the  conditions  under  which  men 
work,  that  can  be  illustrated  by  saying  that  I  ran  across  one  man 
who  had  two  fingers  split ;  the  bone  was  cracked  across;  they  were 
nice,  clean  breaks.  He  was  idle  for  two  weeks,  and  the  manage- 
ment persuaded  him  to  come  back  temporarily  until  he  could  have 
the  use  of  his  fingers.  But,  before  his  fingers  healed  up,  he  acci- 
dentally bumped  into  something  again,  and  the  fingers  had  to 


83 

come  off,  and  he  got  nothing.  That  is  temporary  earnings.  I 
am  opposed  to  that  form. 

Mr.  Bailey:  Just  a  single  word  on  the  point  suggested  by  Mr. 
Gillette  and  Mr.  Lowell.  It  does  seem  to  me  it  is  fundamental 
that  you  must  cover  the  situation  where  the  man  is  partly  injured 
and  is  getting  better,  and  there  is  work  available  for  him  at  re- 
duced wage.  The  experience  in  England — it  is  not  guess-work, 
but  over  there  lots  of  those  men,  either  from  their  own  employer 
or  by  his  help,  can  get  a  job  doing  something  where  they  can- 
not earn  quite  as  much,  but  half  or  two-thirds  what  they  were 
earning,  and  they  are  getting  well  and  getting  paid  for  the  differ- 
ence. And  I  beUeve  you  must  recognize  that,  and,  if  you  don't 
do  that,  it  will  be  quite  unjust.  I  have  undertaken  to  cover  that 
in  the  proposed  act  I  have  got  here.  Fifty  per  cent,  for  the  total 
disability  while  it  lasts  and  up  to  a  certain  limit  of  time  or  amount. 
I  do  not  care  how  you  limit  it.  And,  if  a  man  is  partly  injured 
and  getting  well,  then  the  proper  tribunal  will  say  how  much 
he  can  earn  and  scale  down.  I  think  it  is  practical,  because 
they  are  doing  it. 

Mr.  Gillette:  You  will  rue  the  day  you  don't  do  something 
like  that. 

The  Chairman:  I  will  make  one  more  suggestion.  I  quite 
agree  that  there  ought  to  be  a  provision  that  will  allow  for  an 
increased  earning  capacity,  but  I  think,  if  you  are  going  to  rue 
days,  you  will  all  rue  the  day  when  you  pass  a  compensation  act 
that  won't  allow  you  to  take  a  small  percentage  out  of  the  work- 
ingmen's  wages  with  a  view  of  getting  a  contribution  and  share 
in  the  expense,  and  the  motive  to  keep  down  hard  feelings  and 
keep  up  safety  appliances  and  observe  the  rules  and  regula- 
tions. 

Mr.  Alexander:  Can  anj^body  say  what  the  insurance  rates 
would  be  under  a  fifty  per  cent,  compensation  as  compared  with 
what  they  are  now? 

The  Chairman:    Mr.  Wainwright,  do  you  know? 

Mr.  Wainwright:  Well,  of  course,  in  New  York — you  mean, 
if  you  give  them  only  one  remedy  under  the  Compensation  Act 
or  leave  the  concurrent  remedy?  With  us  we  did  not  disturb 
any  of  the  existing  remedies.  In  that  situation  they  seem  to 
have  increased  in  some  trades  from  twice  to  six  times. 

Mr.  Gillette:  About  twice  in  the  more  hazardous  occupa- 
tions and  six  times  in  the  less  hazardous? 


84 

The  Chairman:  You  take  away  some  of  the  defences,  the 
assumption  of  risk  and  contributory  negligence. 

Mr.  Gillette:  Yes.  For  example,  take  contractor's  sched- 
ule: Carpenters,  under  the  old  law  the  rate  was  two  forty-seven 
on  a  hundred  dollars  of  the  pay-roll.  That  has  been  increased 
to  five  dollars.  The  iron  men,  the  rate  was  six  eight  on  a  hun- 
dred dollars.  That  is  increased  to  twelve  fifty.  Steam  fitters,  for 
example,  I  don't  know  why  there  should  be  this  increase,  from 
one  thirty-five  it  has  gone  up  to  six  twenty-five. 

Mr.  Alexander:  I  asked  the  question  in  order  to  bring  once 
more  to  the  attention  of  all  that,  inasmuch  as  we  cannot  pass  a  law 
uniform  for  all  the  United  States,  we  must  face  the  condition 
that  goods  manufactured  in  one  State  will  have  to  be  sold  in 
other  States  where  such  a  law  may  not  exist.  Can  we  put  a 
burden,  such  as  a  fifty  per  cent,  compensation  will  bring,  upon  the 
small  manufacturers?  We  might  be  able  to  put  that  burden 
upon  them  eventually,  after,  on  the  basis  of  gathered  statistics, 
insurance  rates  have  come  down  to  the  minimum,  but  at  the  be- 
ginning insurance  rates  would  certainly  go  up.  I  believe  that  the 
small  manufacturer  would  be  put  at  a  very  great  disadvantage, 
and  I  am  sure  none  of  us  want  to  eliminate  him  from  American 
business. 

The  Chairman:  Are  you  ready  for  the  question?  The 
amendment  as  it  now  stands,  gentlemen,  is  that  fifty  per  cent, 
would  be  the  limit  for  temporary  disability,  and  that  should  not 
exceed  ten  dollars  per  week,  whether  the  fellow  was  earning 
one  hundred  dollars  or  forty  dollars  or  twenty  dollars  per  week, 
and  that  should  be  without  limit  of  time,  except  as  the  injury 
goes,  and  three  thousand  dollars  permanent  disability.  The 
crucial  point,  as  I  understand  that,  is  that  no  more  than  ten 
dollars  could  be  recovered  by  any  man  in  a  week,  or  no  more  than 
fifty  per  cent. 

Mr.  Gillette:  I  am  going  to  offer  an  amendment  to  that 
amendment. 

A  Member:  You  cannot  do  that. 

Mr.  Neill:  Does  this  at  all  touch  the  question  of  who  is  to 
pay  it? 

The  Chairman:  No. 

Mr.  Neill:  The  question  here  is,  it  shall  be  fifty  per  cent. 
Your  point  is  contribution  by  each. 

Mr.  Gillette:  No,  it  is  the  difference  between  fifty  per  cent 
of  wages  and  fifty  per  cent,  of  the  impaired  earnings. 


85 

The  Chairman:  Well,  make  your  amendment. 

Mr.  Gillette:  I  move  you,  in  lieu  of  fifty  per  cent,  wages 
the  motion  be  made  to  read  fifty  per  cent,  of  the  impaired  earnings. 

The  motion  was  seconded. 

The  Chairman:  And  that  to  cut  out  the  ten-dollar  feature. 

Mr.  Gillette:  No,  no,  that  is  accepted. 

The  Chairman:  You  have  heard  the  amendment.  Any  re- 
marks on  that? 

Mr.  Doten:  If  this  opens  up  the  whole  question,  I  would 
much  prefer  to  see  a  limit  of  time  of  three  hundred  weeks  at  ten 
dollars  a  week,  or  less  of  course  if  half  the  wages  is  less,  so  that 
you  will  not  be  obliged  to  pay  three  thousand  dollars  if  disability 
extends  to  a  long  enough  period  to  enable  you  to  pay  that. 

The  Chairman:  Do  you  make  that  as  another  amendment? 
[Laughter.] 

Mr.  Doten:  No,  that  is  another  portion  of  the  original 
motion.  If  a  man  is  earning  twenty  dollars  a  week  and  gets  ten 
dollars,  that  is  half,  in  six  years  the  three  thousand  dollars  will 
have  accrued,  but,  if  he  is  getting  six  dollars  a  week,  it  will  take 
eight  or  nine  years  to  reach  that  three -thousand -dollar  limit, 
and  I  would  limit  it  as  to  the  time  to  six  years,  and  three  thousand 
dollars. 

Mr.  Gillette  :  I  accept  that. 

Mr.  Doten  :  Then,  if  we  could  wipe  out  the  three  thousand 
dollars  and  simply  say  the  ultimate  limit  shall  be  ten  dollars  a 
week  and  the  ultimate  number  of  weeks  three  hundred,  you  get 
your  three-thousand-dollar  limit,  and  the  other  effect  also. 

The  Chairman:  Now  that  raises  an  entirely  different  ques- 
tion. 

Mr.  Gillette:  No,  that  is  accepted. 

The  Chairman  :  As  I  understand,  you  are  all  willing  to  accept 
the  proposition  now  that  you  limit  the  amount  a  man  gets  to  ten 
dollars  a  week,  irrespective  of  what  he  is  earning,  and,  that  that 
shall  not  run  more  than  three  hundred  weeks,  and,  if  he  gets  six 
dollars  a  week,  it  shall  not  extend  longer  than  six  years.  So  you 
might  have  this  situation  under  that  motion.  You  might  have  a 
man  earning  twelve  dollars  a  week,  who  would  get  six  dollars  on 
that  basis,  at  fifty  per  cent,  he  will  get  eighteen  hundred  dollars. 
He  might  be  injured  with  another  man  by  the  side  of  him,  and  the 
other  man  would  be  getting  twenty  dollars  a  week.  He  would 
get  ten  dollars  a  week  until  he  got  three  thousand  dollars.     So 


86 

that  for  the  same  injury  he  would  get  three  thousand  dollars  in- 
stead of  eighteen  hundred  dollars. 

The  question  was  called  for. 

Mr.  Doten:  My  objection  is  that  we  should  not  make  it 
obligatory  to  pay  every  man  an  ultimate  amount  of  three  thou- 
sand dollars,  no  matter  what  his  wages. 

Mr.  Lowell:  If  you  are  putting  your  total  limit  on  the  maxi- 
mum, should  not  there  be  some  minimum,  not  less  than  four  dol- 
lars a  week? 

Mr.  Bailey:  The  percentage  takes  care  of  that. 

Mr.  Wainwright:  As  the  decision  of  this  Conference  may  be 
inconsistent  with  the  conclusion  arrived  at  by  our  Commission, 
I  think  I  would  rather  be  excused  from  voting  on  these  different 
propositions.  For  example,  this  makes  a  six-year  period,  and 
we  arrived  at  an  eight-year  period,  so,  the  committee  having 
gone  on  record  as  favoring  an  eight-year  period,  I  do  not  change 
my  stand. 

Mr.  Neill  :  It  seems  to  me  we  have  overlooked  a  very  impor- 
tant matter,  and  that  is  fixing  the  minimum  of  compensation; 
because  a  man  earning  one  dollar  a  day  is  at  his  limit  already. 
Fifty  per  cent,  of  that  would  be  three  dollars  a  week. 

Mr.  Gillette:  You  see  this  flaw  in  that.  You  are  not  dis- 
criminating between  male  and  female  employees,  nor  minors. 

Mr.  McEwen  :  You  ought  not  to  have  any. 

Mr.  Gillette:  Any  female  employees? 

Mr.  McEwen:  Any  minors. 

Mr.  Gillette:  I  have  three  in  my  family. 

The  Chairman:  You  are  discussing  the  amendments.  I  be- 
lieve everybody  has  amended  it.     Everybody  in  favor  say  aye. 

A  viva  voce  vote  was  then  had. 

Mr.  Gillette:  That  was  on  my  amendment. 

The  Chairman:  Mr.  Lowell,  if  you  will  take  the  Chair,  I  will 
vote  aye. 

(Mr.  Lowell  then  took  the  Chair,  and  the  noes  were  called 
for.) 

Mr.  Gillette:  This  is  on  the  question  of  what? 

The  Chairman:  On  the  question  of  limiting  liability  to  ten 
dollars  a  week  and  three  hundred  weeks  and  fifty  per  cent,  of 
the  earning  capacity. 

Mr.  Gillette:  That  is  not  as  I  understand  it.  My  amend- 
ment was  not  accepted. 


87 

The  Chairman  :  Yes,  it  was.  One  gentleman  said  he  ac- 
cepted it,  and  I  put  it  on  that  basis.  I  understand  we  are  voting 
on  that,  with  a  limit  as  to  the  maximum  and  no  limit  as  to  the 
minimum. 

Mr.  Neill:  Before  you  put  that,  will  you  have  the  matter 
put  in  writing? 

Mr.  Saunders:  The  way  it  stands  now  is,  "That  compensa- 
tion of  fifty  per  cent,  of  the  impairment  of  earnings  be  paid,  with 
a  maximum  amount  of  ten  dollars  per  week." 

The  Chairman:  Fifty  per  cent,  of  the  impairment  up  to  a 
payment  of  ten  dollars  per  week,  not  to  exceed  in  any  case  three 
hundred  weeks.  As  I  understand,  your  point  is,  if  you  have  a 
man  getting  ten  dollars  or  getting  five  dollars,  he  gets  that  for 
three  hundred  weeks,  which  would  be  fifteen  hundred. 

Mr.  Saunders:  Now  I  move  the  amendment. 

The  Chairman  :  Well,  that  motion  has  been  put,  hasn't  it? 

Mr.  Saunders:  Yes. 

The  Chairman:  All  those  in  favor  let  me  know  by  rising  to 
your  feet. 

Mr.  Saunders:  There  is  no  minimum  in  this. 

Mr.  Doten  :  The  question  is  called  for  again. 

Mr.  Saunders:  ''That  compensation  be  based  on  fifty  per 
cent,  of  the  impairment  of  earnings,  with  a  maximum  of  ten 
dollars  per  week  and  three  hundred  weeks,"  and  no  minimum. 

The  Chairman:  As  I  understand  that,  gentlemen,  if  a  man  is 
able  to  earn  half  of  his  wages,  then  this  fifty  per  cent,  only  ap- 
plies to  the  other  half. 

A  Voice:  That  is  right. 

Mr.  Saunders:  It  is  not  what  he  is  able  to  do.  It  is  what  he 
is  doing.  It  is  the  earnings  that  he  is  receiving,  not  his  earning 
capacity. 

The  Chairman:  That  is  not  my  understanding.  Now  what 
is  the  motion?  Let  us  have  it  so  there  won't  be  any  question 
about  it.  Is  the  motion  on  his  earnings  or  his  earning 
capacity? 

Mr.  Saunders  :  If  you  get  into  his  earning  capacity,  you  have 
yourself  involved  where  you  will  never  get  out,  because  a  man 
might  be  able  to  earn  fifty  per  cent,  of  what  he  earned  prior  to 
the  injury,  if  he  could  get  a  job,  but  might  not  be  able  to  get 
a  job. 

The  Chairman:  That  is  true. 


88 

Mr.  Saunders:  But,  if  you  deal  with  impairment  of  earnings, 
you  can  find  out  what  he  was  earning  and  what  he  is  earning. 

Mr.  Gillette  :  That  is  the  way  I  put  it. 

The  Chairman:  All  in  favor  of  the  proposition  with  the  "im- 
pairment of  earnings"  rise  to  your  feet.     Eight,  as  I  view  it. 

(Mr.  Lowell  in  the  Chair.) 

The  Chairman:  All  opposed  stand. 

Eleven  voted  no. 

The  Chairman:  It  is  not  a  vote. 

(Mr.  Mercer  in  the  Chair.) 

Mr.  Neill:  May  I  ask  a  question  that  seems  to  be  very  im- 
portant, before  we  go  any  further?  Discussing  the  question  with 
Mr.  Cease  here,  I  find  that  he  is  in  doubt  as  to  what  is  the  sig- 
nificance of  the  votes  of  this  Conference.  Is  it  understood  that 
each  man  here  present  is  voting  his  own  personal  opinion  or  that 
the  votes  express  the  opinions  of  the  various  Commissions  rep- 
resented? 

(Cries  of  "Personal  only.") 

The  Chairman  :  I  have  been  acting  on  that  basis.  The  amend- 
ment is  lost.  Now  the  question  on  the  motion  is  for  compensa- 
tion. 

Mr.  Neill:  Which  was  forty  per  cent,  of  the  earning  capacity 
for  the  first  ten  weeks,  fifty  per  cent,  for  the  next  sixteen  weeks, 
and  sixty  per  cent,  for  the  next  twenty-six  weeks,  ending  the  com- 
pensation at  a  year  for  temporary  disability. 

Mr.  Smith:  I  believe  the  motion  before  the  body  now  is  Mr. 
Dickson's  amendment  to  the  original  motion. 

The  Chairman  :  What  is  that? 

Mr.  Dickson:  The  amendment  now  stands  that  the  pajonent 
shall  be  fifty  per  cent,  of  the  average  weekly  wage,  while  the  disa- 
bility lasts,  with  a  limit  of  three  hundred  weeks,  and  ten  dollars 
per  week. 

Mr.  Alexander:  The  weekly  wage  which  he  earns  while  dis- 
abled or  previous? 

Mr.  Dickson  :  No,  previous  to  the  accident. 

The  Chairman:  Ten  dollars  a  week.    With  no  minimum. 

Mr.  Dickson:  Yes. 

Mr.  Neill:  Without  any  time  off  in  the  beginning,  Mr.  Dick- 
son? 

Mr.  Dickson  :  That  comes  later.    That  is  another  question. 

The  Chairman:   All  in  favor  of  that  motion  will  rise, — that 


89 

amendment.  All  opposed  to  it  rise.  I  should  say  that  amend- 
ment is  lost. 

Now  all  in  favor  of  the  original  motion.  We  get  back  to  that. 
Forty  per  cent,  for  the  first  ten  weeks,  fifty  per  cent,  for  the  next 
sixteen  weeks,  and  sixty  per  cent,  for  the  next  twenty-six  weeks. 
All  in  favor  of  that,  let  me  know  by  rising.     All  opposed  rise. 

The  motion  was  lost. 

The  Chairman:  Now  our  time  is  up  and  absolutely  nothing 
done. 

Mr.  Alexander:  I  move  that  the  discussion  be  continued, 
if  necessary,  for  half  an  hour. 

The  Chairman:  I  will  take  that  as  the  sense  of  the  meeting. 
Now,  Mr.  Boyd. 

Mr.  Boyd:  Now,  Mr.  Chairman,  I  move  you  that  we  adopt 
the  following  proposition: — 

"When  such  disability  is  determined  to  have  existed  in  a  bona 
fide  form  for  two  weeks  or  more,  then  compensation  shall  be 
awarded  from  the  day  the  employee  left  work,  on  the  basis  of 
fifty  per  cent,  of  the  earnings,  to  be  paid  as  long  as  the  disability 
lasts." 

The  Chairman  :  Is  there  a  second  to  that  motion? 

The  motion  was  seconded. 

Mr.  Bailey:    I  desire  to  move  a  substitute  as  follows: — 

"That  compensation  in  case  of  partial  incapacity  for  work, 
resulting  from  the  injury,  shall  consist  of  weekly  payments  equal 
to  one-half  the  difference  between  the  average  weekly  wages  of 
the  workman  before  the  accident  and  the  average  weekly  wages 
which  he  is  able  to  earn  after  the  accident,  but  in  no  event  shall 
any  such  compensation  exceed  ten  dollars  a  week  or  extend  be- 
yond three  hundred  weeks." 

The  Chairman:  That  is  the  same  thing  we  passed  on  pre- 
viously. 

Mr.  Saunders:  I  would  like  to  put  Mr.  Bailey's  substitute, 
with  the  addition,  "with  a  minimum  weekly  payment  of  four 
dollars  a  week."  That  brings  up  a  question  that  has  not  been 
discussed  before. 

Mr.  Howard:   I  second  the  motion. 

The  Chairman  :  All  in  favor  of  that,  let  it  be  known  by  saying 
aye. 

A  viva  voce  vote  was  then  had. 

The  question  was  called  for. 


90 

The  Chairman  :  All  in  favor,  let  it  be  known  by  rising. 

A  rising  vote  was  then  taken,  and  the  motion  adopted  by  a 
vote  of  nine  to  eight. 

Mr.  Doten:  Mr.  Chairman,  could  we  know  what  the  objection 
of  the  gentlemen  opposed  to  this  is? 

Mr.  Golden  :  The  minimum  is  too  low  for  me. 

Mr.  Boyd  :  It  is  too  low. 

Mr.  Golden:  It  is  at  least  a  couple  of  dollars  a  week  too 
low. 

The  Chairman:  If  the  minimum  was  six  dollars  a  week,  you 
would  vote  for  it? 

Mr.  Alexander:  The  average  wage  of  girls  in  many  factories 
is  six  or  six  fifty  a  week. 

The  Chairman:  -Now,  gentlemen,  if  we  are  going  to  go  around, 
Judge  Holloway. 

Judge  Holloway:  I  just  want  to  say  this,  Mr.  Chairman, 
that,  when  these  matters  are  presented  here  to  be  voted  upon,  I 
am  voting  upon  the  principle.  These  figures  would  not  last  in 
Montana  for  a  second.  I  am  voting  for  the  principle  that  is  in- 
volved here;  and,  if  a  bill  should  be  drafted  for  presentation,  we 
would  leave  these  blanks  and  let  the  Legislature  fix  it,  because  you 
must  recognize  the  fact  at  once  that  the  cost  of  living  in  Montana 
is  very  much  greater  than  it  is  in  many  other  sections  of  this  coun- 
try, that  the  average  wage  out  there  is  very  much  higher.  You 
talk  to  a  servant-girl  about  a  wage  of  three  dollars  a  week  and 
she  would  laugh  at  you.  A  servant-girl  that  cannot  earn  twenty- 
five  to  thirty  dollars  a  month  in  Montana  would  not  be  kept  for 
a  minute.  And  this  same  ratio  exists,  of  course,  throughout. 
The  miners  and  smelter  men  are  getting  from  three  dollars  and  a 
half  to  four  dollars  a  day,  and,  of  course,  you  have  got  to  graduate 
this  with  reference  to  the  wage  scale  that  prevails  in  your  immedi- 
ate community,  and  I  say  that  I  am  simply  voting  for  the  prin- 
ciple. These  figures  are  just  like  blank  spaces  to  me.  I  don't 
care  what  figures  you  put  in  there,  because  I  am  not  going  to  be 
bound  by  the  figures.  I  am  in  favor  of  the  principle  that  you 
have  put  in,  but  not  the  figures. 

The  Chairman:  You  are  in  favor  of  the  principle  of  a  per- 
centage basis  and  a  minimum  and  maximum? 

Judge  Holloway:  Yes,  a  limitation  of  time;  but  figures,  of 
course,  are  subject  to  revision  by  the  Montana  Legislature. 

Mr.  Neill:    I  move  you  that  the  Conference  vote  that  it  is 


91 

in  favor  of  the  principle  of  a  percentage  basis  of  the  wages  with 
a  maximum  and  a  minimum  per  week. 

Mr.  Gillette:  We  just  carried  the  motion. 

The  Chairman:  But  somebody  just  asked  the  question  if 
these  gentlemen  who  voted  against  it  would  indicate  for  our  bene- 
fit what  they  would  be  willing  to  stand  for. 

Mr.  Dickson:  The  principle  that  I  object  to  is  Mr.  Gillette's 
pet  principle;  that  is,  that  the  impairment  of  the  earning  power 
ought  to  be  a  factor.  Strictly,  logically,  that  is  right.  Probably 
it  ought  to  be.  But,  as  a  practical  question,  I,  of  course,  can  only 
use  my  own  experience  in  the  steel  business.  I  have  been  thirty 
years  connected  with  the  steel  business.  As  a  practical  proposi- 
tion, it  is  a  negligible  quantity.  There  is  not  five  per  cent,  of  the 
men  injured  that  ever  get  any  employment  in  other  lines  that 
would  affect  this  question. 

The  Chairman:  There  was  a  gentleman  here  wanted  to  put 
it  up  to  six  instead  of  four. 

Mr.  Gillette  :  Suppose  a  man  had  one  eye  out? 

The  Chairman:   Mr.  McEwen? 

Mr.  McEwen:  Yes,  I  will  state  mine.  I  recognize  that  we 
who  represent  the  labor  end  of  it  are  largely  in  a  minority  here. 

Mr.  Gillette:  No,  we  are  all  together. 

Mr.  McEwen:  Well,  what  I  mean  is  we  men  who  are  ap- 
pointed to  represent  the  labor  men.  Now  I  am  not  satisfied  with 
a  fifty  per  cent,  payment.  I  thought  that  we  ought  to  do  as  well 
as  Germany,  and  pay  sixty-six  and  two-thirds.  I  would,  for  the 
purpose  of  getting  together,  compromise  on  sixty,  but  you  fix 
a  minimum  and  a  maximum  amount  not  to  exceed  fifty  per  cent., 
and  I  am  not  satisfied  with  a  three-hundred-week  payment.  I 
can  readily  conceive,  if  that  is  true,  cheap  men  would  be  much 
preferred  around  hazardous  work  to  the  man  who  gets  higher 
pay.  If  New  York  can  stand  for  eight  years,  Minnesota  can, 
and  so  can  Massachusetts,  or  any  other  State.  We  entered 
into  this  thing  in  our  State  with  the  idea  that  we  wanted  to  min- 
imize pauperism  among  the  wrecks  of  industry.  I  am  ready 
to  establish  the  principle  and  have  it  develop  as  a  whole  system 
as  the  other  States  adopt  the  system  of  compensation.  To  begin 
with,  we  ought  to  have  at  least  a  sixty  per  cent,  compensation, 
and  it  ought  to  be  over  a  longer  period  than  three  hundred  weeks. 
It  ought  to  be  ten  years  minimum,  and  I  would  be  willing  to 
compromise  on  eight. 


92 

Mr.  Dickson:  May  I  answer  Mr.  Gillette's  question,  What 
becomes  of  the  man  who  loses  an  eye?  In  thirty  days,  I  should 
say,  his  status  would  be  decided.  He  is  permanently  partially 
disabled,  and  it  would  not  enter  into  this. 

The  Chairman  :  Somebody  else  who  voted  against  that  motion, 

Mr.  Neill:  I  object,  first,  because  I  think  fifty  per  cent,  is  too 
low.  I  would  vote  for  sixty  per  cent.  In  the  second  place, 
there  should  be  a  minimum  limit,  as  the  very  man  you  want  most 
to  take  care  of  is  the  low-paid  man.  As  you  go  down,  sixty  per 
cent,  ought  to  be  increased,  and  you  ought  to  stop  that  by  tak- 
ing the  minimum.  You  won't  have  one  case  of  a  servant  or  shop 
girl  in  a  thousand  cases,  and,  in  order  to  meet  that,  we  are  going 
to  recommend  a  proposition  which  will  be  an  injustice  to  five 
hundred  cases,  to  prevent  one  case  of  a  ridiculous  nature  that  will 
occur.  It  seems  to  me  there  should  be  a  minimum  of  five  dollars 
and  sixty  per  cent.,  and  make  this  apply  only  to  adults  and  in 
case  of  disability. 

Mr.  Doten:  I  would  suggest,  Mr.  Chairman,  if  I  may,  at  this 
point,  that  we  might  make  the  minimum  six  dollars  or  the  full 
wage  of  the  injured  workman.  That  is,  if  it  was  below  six  dollars, 
simply  the  full  wage,  so  as  not  to  have  that  absurdity  of  paying 
more  than  the  wages. 

Mr.  Lowell:  In  this  special  discussion,  it  seems  to  me  we  are 
losing  entirely  the  point  of  view  of  whether  you  can  pass  such  a 
thing  as  a  financial  matter.  Now  it  is  unfortunate  that  the  mill 
girls  in  Fall  River  do  not  get  more  than  eight  dollars  a  week,  or 
whatever  it  is, — something  like  that.  But,  as  a  matter  of  fact, 
that  is  the  situation.  Now  in  order  to  have  this  law  in  Massa- 
chusetts, you  have  got  to  get  a  law  that  won't  burden  the  mills 
of  Fall  River  too  much.  It  is  a  very  pretty  thing  for  us  to  stand 
here  and  say  the  low  limit  shall  be  six  dollars,  but,  as  a  matter 
of  fact,  if  that  kind  of  law  went  through  Massachusetts,  you  would 
ruin  your  mills.  You  are  not  going  to  get  any  law  at  all.  Now 
we  all  would  say — I  would  say,  every  one  here  would  say — that  we 
should  have  a  minimum  amount  on  which  the  person  injured 
could  get  along  very  well,  but  that  is  not  the  situation.  We  are 
facing  a  situation  where  the  result  is  perfectly  rotten,  to  use  a 
familiar  English  word,  and  we  as  practical  men  have  got  to  im- 
prove it  as  much  as  we  can. .  Now  we  cannot  in  Massachusetts 
say  that  there  shall  be  a  low  limit  of  six  dollars,  say,  or  seven 
dollars,  anything  of  that  kind,  and  make  the  thing  go  through. 
Now  it  is  possible  that  we  might  make  it  five  dollars. 


93 

Mr.  McEwen:  I  will  agree  to  five  dollars. 

Mr.  Lowell  :  As  a  compromise,  I  should  agree  to  it,  with  the 
possibility,  when  we  come  to  consider  it  in  Massachusetts,  we  may- 
have  to  lower  the  limit.  You  cannot  burden  our  Massachusetts 
industries — you  gentlemen  in  these  States  out  here,  I  think,  do 
not  quite  look  at  it  the  way  I  do,  because  the  question  of  hazard 
has  come  in  so  much  you  have  got  into  the  habit  of  considering 
this  along  the  point  of  view  of  the  miner  or  the  builder  or  some 
very  hazardous  risk.  Now  in  Massachusetts,  as  I  have  repeated 
several  times,  we  are  considering  it  from  the  point  of  view  of  the 
girl  in  the  factory,  which  is  not  a  hazardous  risk,  as  risks  go,  but 
where  there  are  a  great  many  accidents  and  where  the  wage  is 
very  low.  Now  our  proposition  is  to  do  the  best  we  can  for  those 
people  without  turning  over  the  whole  industry  and  preventing 
anything.  If  we  were  to  say  six  dollars  minimum,  the  result 
might  very  likely  be  that  several  of  the  mills  in  Fall  River  would 
shut  down  altogether,  and  those  girls  would  not  get  anything, 
so  that  the  result  for  the  employees  would  be  a  great  deal  worse 
under  the  suggested  law  than  under  the  one  we  have. 

Judge  Hollo  way:  Mr.  Chairman,  as  I  stated  before,  my 
view  of  this  matter  is  that  these  figures  are  simply  put  in  here  to 
fill  space.  I  would  not  be  bound  by  them  at  all.  If  the  principle 
which  is  embodied  in  this  is  satisfactory,  I  think  it  ought  to  be 
the  sense  of  this  meeting  that  these  figures  are  put  in  here  just 
merely  for  the  purpose  of  filling  space.  The  conditions  that 
exist  in  Massachusetts  do  not  exist  in  Washington  or  Montana 
or  Idaho  at  all,  and  you  cannot  have  uniform  laws  brought  down 
to  the  point  of  dollars  and  cents.  You  can  have  uniform  prin- 
ciples, and  that  is  the  utmost  we  can  ever  hope  for.  We  cannot 
possibly  hope  to  get  uniform  laws  that  are  going  to  prescribe  dollars 
and  cents. 

The  Chairman:  Why  don't  you  make  the  motion  that  we 
commit  ourselves  to  that  as  a  principle,  and  not  be  bound  by  the 
amounts,  but  leave  that  open  to  the  respective  States? 

Judge  Holloway:  Mr.  Chairman,  in  order  to  get  the  matter 
before  the  meeting,  I  move  you  that  it  is  the  sense  of  this  assembly 
that  we  adopt  the  principle  just  as  voted  upon,  but  that  figures 
indicating  the  maximum  and  the  minimum  and  the  length  of 
time  during  which  compensation  shall  continue  are  merely  ad- 
visory. 

Mr.  Schutz  :  I  second  the  motion. 


94 

The  question  was  then  put,  and  the  motion  prevailed. 

Mr.  Doten  :  May  I  ask  whether  we  have  any  figures  in  here? 

The  Chairman:  The  motion  was  that  the  figures  were  simply 
advisory. 

Mr.  Doten  :  What  figures? 

The  Chairman  :  Four  dollars  and  ten  dollars  and  fifty  per  cent. 

Mr.  Doten  :  I  would  like  to  have  it  incorporated  in  the  record 
that  the  minimum  should  be  a  definite  figure,  whether  it  is  four 
or  five  or  six  dollars,  or,  in  case  the  full  wage  of  the  injured  person 
is  less  than  that  amount,  his  full  wages,  so  that  we  should  not 
have  the  absurdity  of  a  three-dollar-a-week  person  getting  a 
minimum  return  which  would  be  more  than  his  full  earnings. 

Mr.  McEwen:  I  heartily  agree  with  the  gentleman  who  has 
just  spoken.  If  we  have  a  minimum,  there  is  no  danger  of  any 
State  going  below  that,  and  each  State  would  be  responsible  for  its 
action  above  it. 

The  Chairman:  Do  I  now  understand  you  that  you  make  a 
motion  there  shall  be  no  figures? 

Mr.  Doten:  That  we  should  state  a  definite  minimum,  but 
state  also  *'or,  if  the  wages  of  the  injured  workman  are  less  than 
the  minimum,  his  full  wages." 

Mr.  Gillette:  I  think  there  is  one  thing  I  have  overlooked, 
and  that  is  this, — the  difference  between  four  and  five  dollars  a 
week.  I  don't  think  it  would  cut  a  particle  of  figure  in  Minnesota 
with  any  male  employee:  the  only  difference  it  would  make  would 
be  with  family  employees  and  probably  factory  girls  and  office 
boys.  Now  I  don't  know  whether  you  can  subdivide  things 
very  much  better  than  right  there.  What  I  mean  by  it  is  this, 
that  that  class  of  people  do  not  have  many  dependants.  As  a 
rule,  they  do  not  have  dependants,  and  the  compensation  which 
the  individuals  themselves  would  receive  would  probably  be 
greater  in  proportion  than  the  higher  compensation  would  amount 
to  to  heads  of  families,  considering  the  number  of  people  among 
whom  it  would  be  divided.  Now  I  agree  thoroughly  that,  to 
accomplish  anything,  we  ought  to  agree.  We  ought  to  be  just  as 
unanimous  as  we  can  be,  and  I  am  very  sorry  you  disagree  with 
me.  But  what  I  was  going  to  say  was  this:  it  really  does  seem 
to  me  that,  if  we  get  into  a  question  of  this  kind,  that  possibly  we 
would  arrive  at  more  final  conclusions  if  they  were  passed  a  little 
while,  and  we  took  them  up  in  connection  with  other  questions 
which  appear  of  equal  importance  to  some  of  us,  because  all 


95 

legislation  and  things  of  this  kind  are  matter  of  compromises.     I 
just  make  that  suggestion. 

Mr.  Bailey  :  I  think  we  ought  to  agree,  and  if  we  are  going  to 
make  the  workman  pay  part  of  the  compensation,  I  might  very 
well  vote  for  the  sixty  per  cent.  If  there  are  other  things  voted 
certain  ways,  it  might  affect  me  very  much  on  that. 

The  Chairman:  Are  you  ready  for  the  question? 

Mr.  Doten:  Several  gentlemen  have  spoken  about  exempting 
minors.  It  seems  to  me  we  can  accomplish  this  by  the  motion 
I  have  made.  The  persons  affected  would  be  minors  very  largely, 
and  the  English  act  provides  that  they  shall  have  their  full  wages 
up  to  a  certain  amount. 

The  Chairman:  All  in  favor  of  the  principle  that,  where  they 
are  receiving  less  than  four  dollars  as  a  wage,  they  should  only 
get  their  full  wages  for  three  hundred  weeks,  if  they  are  injured 
that  long,  let  it  be  known  by  saying  aye. 

The  motion  prevailed. 

The  Chairman:  Now  the  next  question  is  the  question  of 
permanent  disability,  as  I  have  it  marked  down  here.  What  are 
your  indications  on  the  question  of  permanent  total  disability? 

Mr.  Bailey  :  If  I  understand  it,  I  make  this  other  motion  that, 
"in  case  of  total  incapacity  for  work  resulting  from  the  injury, 
then  there  shall  be  a  weekly  payment  equal  to  one-half  of  the 
workman's  average  weekly  earnings  while  at  work  on  full  time 
during  the  preceding  year;  but  in  no  case  shall  such  weekly  pay- 
ment exceed  ten  dollars,  nor  extend  over  a  period  exceeding  six 
years  from  the  date  of  the  accident." 

Mr.  Lowell:   Three  hundred  weeks. 

Mr.  Bailey  :  Three  hundred  weeks,  if  you  like  that  better. 

Mr.  Lowell:  I  second  the  motion. 

The  Chairman:  It  is  moved  and  seconded,  as  I  understand, 
that  in  case  of  total  incapacity  for  work  resulting  from  an  injury, 
then  there  shall  be  a  weekly  payment  equal  to  one-half  of  the 
workman's  average  weekly  earnings  while  at  work  on  full  time 
during  the  preceding  year,  but  in  no  case  shall  such  weekly  pay- 
ment exceed  ten  dollars  nor  extend  over  a  period  exceeding  six 
years  from  the  date  of  the  accident. 

Mr.  Saunders:  I  move  an  amendment,  adding  a  minimum 
of  four  dollars  per  week. 

The  Chairman  :  Do  you  accept  that? 

Mr.  Bailey:  I  accept  that. 


96 

Mr.  Gillette:  The  minimum  would  be  twelve  hundred  dol- 
lars. 

The  Chairman:  There  is  two  hundred  and  eight  dollars  a 
year.     That  is  total  disability. 

Mr.  Bailey:  I  think  perhaps  with  this  addition, — "not  to  ex- 
ceed the  actual  wage." 
Mr.  Neill:  That  won't  do  at  all  there. 
Mr.  Bailey:  Why  not? 

Mr.  Neill:  Take  a  sixteen-year-old  boy,  he  is  permanently 
disabled,  and  you  cannot  fix  his  status  forever  as  a  sixteen-year- 
old  wage-earner. 

Mr.  Alexander:  Where  is  the  difference  between  this  and 
temporary  disability?  The  same  point  you  ma«ke  holds  good  for 
temporary  disability. 

Mr.  Neill:  No.  A  disability  that  lasts  over  fifty-two  weeks 
is  going  to  be  a  permanent  disability. 

The  Chairman  :  Then  why  not  make  our  rules  exactly  the  same, 
so  there  won't  be  any  question  arise  as  to  whether  it  is  temporary 
or  permanent? 

Mr.  Neill:  Because  a  boy  who  is  getting  an  apprentice's  wage, 
seventeen  years  old,  may  be  only  earning  three  dollars  a  week 
and  is  permanently  disabled,  and  the  difference  between  him 
and  the  boy  eighteen  years  old,  who  has  just  finished  his  appren- 
ticeship— 

The  Chairman:  Why  don't  you  reach  it,  then,  by  qualifying 
the  question  as  to  whether  or  not  he  was  a  journeyman  or  a 
minor? 

Mr.  Gillette:  It  strikes  me  it  is  a  mighty  good  point,  but  I 
don't  know  how  you  are  going  to  fix  his  earning  capacity. 

The  Chairman:  Won't  the  same  thing  be  true,  if  he  was  put 
on  a  temporary  basis?  Would  not  you  have  the  same  difficulty 
exactly? 

A  Member:  The  English  act  puts  that  up  to  the  adult  earnings 
after  a  certain  period. 

Mr.  Gillette  :  At  the  age  of  sixteen  you  don't  know  what  his 
adult  earnings  will  be. 

Mr.  Lowell:  It  seems  to  me  you  can  get  over  that  difficulty 
this  way:  In  your  permanent  disability  provide  a  minimum  of 
four  dollars,  and  then  say  that,  if  the  actual  wages  of  any  one 
over  twenty-one  is  less  than  that  amount,  it  shall  be  the  actual 
amount  of  wages.     In  that  way  your  minor  will  have  your  mini- 


97 

mum  amount,  and  four  dollars,  or  make  it  five  dollars,  if  necessary, 
should  be  enough  to  give  him,  and  fair  enough. 

The  Chairman:   Do  you  accept  that  amendment,  gentlemen? 

Mr.  Bailey:  I  accept  that. 

The  Chairman:  Then  the  motion  as  it  now  stands,  as  I  under- 
stand it,  is  that  you  shall  have  a  limit  in  time  of  three  hundred 
weeks,  a  maximum  in  amount  of  ten  dollars  a  week,  and  fifty 
per  cent,  of  the  wages;  that  you  have  a  minimum  of  all  persons 
below  twenty-one  years  of  age  of  four  dollars,  and  above  twenty- 
one  years  of  age  the  full  amount  of  their  wages,  if  they  are  earning 
less  than  four  dollars. 

Mr.  Alexander:  Dr.  Neill's  point  ought  to  be  amplified  a 
little.  An  apprentice,  the  week  before  graduation,  taking  some 
specific  case,  would  get  ten  dollars  a  week :  after  he  graduates,  he 
would  get  an  average  of  fifteen  dollars  a  week.  As  a  matter  of 
fact,  he  is  worth  fifteen  dollars  just  as  much  the  week  before 
graduation  as  after.  If  you  give  that  boy  injured  then  only  his 
apprentice  wage,  I  think  you  do  him  a  great  injustice. 

The  Chairman:  They  seem  to  in  England,  from  the  way  the 
act  runs. 

A  Member:  That  is  admitted  on  all  sides  abroad. 

The  Chairman:  But  the  question  now  before  the  house  is 
as  I  have  stated,  as  I  understand  it.  Any  argument  on  that 
question? 

Mr.  Golden:   May  I  read  the  Illinois  section? — 

"Minors,  in  case  of  permanent  disabihty  to  be  paid  compen- 
sation as  above,  on  the  basis  of  fifty  per  cent,  of  the  earnings  of 
adults  in  the  same  line  of  employment;  in  case  of  temporary 
disability,  when  they  have  dependents,  to  be  paid  compensation 
so  long  as  it  lasts  as  above,  on  basis  of  fifty  per  cent,  of  the  earn- 
ings of  adults  in  the  same  line  of  employment,  provided  that  the 
compensation  paid  shall  not  exceed  the  full  weekly  pay;  when 
they  have  no  dependents,  on  the  basis  of  fifty  per  cent,  of  their 
earnings." 

The  Chairman:  All  in  favor  of  the  motion  will  say  aye. 

A  viva  voce  vote  was  taken,  and  the  Chair,  being  in  doubt,  called 
for  a  rising  vote. 

The  Chairman:  Now  do  you  understand  that  question?  The 
motion  is  lost. 

Mr.  Neill:  May  I  suggest,  as  a  method  of  procedure,  there 
are  in  this  matter  four  or  five  items?    We  do  not  know  what  the 


98 

opposition  is  opposed  to,  but  we  take  up  the  items  one  by  one  and 
get  the  sense  of  the  meeting  on  each  particular  item,  first  on  the 
minimum  and  then  on  the  maximum  and  then  on  the  length  of 
time,  so  we  will  find  out  what  the  particular  element  is  that 
meets  objection. 

Mr.  Rohr:  As  I  voted  in  the  negative,  I  might  say  I  am  op- 
posed to  a  minimum  of  fifty  per  cent,  of  wages.  I  would  like 
to  have  that  sixty-six  and  two-thirds. 

Judge  Hollo  way:  I  voted  for  it,  but  I  did  not  vote  for  it  be- 
cause I  am  in  favor  of  fifty  per  cent.,  because  I  am  not.  But 
I  am  in  favor  of  the  principle,  and  I  still  insist  that  is  all  we  should 
attempt  to  adopt  now. 

Mr.  Rohr:  If  we  are  going  to  have  a  principle,  we  might  make 
that  principle  sixty-six  and  two-thirds  instead  of  fifty. 

Judge  Hollow  ay:  But  you  cannot  do  that,  because  in  one 
locality  fifty  per  cent,  might  be  satisfactory  and  in  another  they 
might  insist  on  seventy-five.  I  would  not  undertake  to  say 
you  could  pass  a  bill  through  the  Montana  Legislature  for  less 
than  seventy-five.  I  doubt  if  you  could,  and  I  voted  for  it  be- 
cause of  the  principle  involved,  and  not  of  the  figures. 

Mr.  Dickson:  I  believe  that  the  adverse  vote  and  the  non- 
vote,  if  I  may  use  the  term,  are  largely  due  to  the  fact  that  we  are 
pretty  well  mixed  and  probably  don't  get  the  grasp  of  these  sub- 
jects that  we  had  early  in  the  day.  I  would  like  to  make  a  motion 
that  the  Chair  appoint  a  committee  of  three  to  consider  this 
question  over  night  and  present  a  recommendation  to  us,  so  that 
we  can  take  it  up  the  first  thing  in  the  morning. 

The  Chairman  :  That  is  as  to  amounts? 

Mr.  Dickson:  This  question  of  permanent  disability  and 
death. 

Mr.  Boyd:  I  second  the  motion. 

Mr.  Dickson:  With  the  proviso  that  you  don't  appoint  me 
on  the  committee. 

Mr.  Alexander:  That  would  mean  no  further  sessions  to-day. 

The  Chairman:  A  motion  is  made  and  seconded.  All  in 
favor  say  aye;  contrary,  no.  That  is,  to  report  back  in  the  morn- 
ing, as  I  understand.  I  will  appoint  Mr.  Saunders,  Mr.  Gillette, 
and  Mr.  Winans. 

Mr.  Dickson:  I  move  that,  when  we  adjourn,  we  adjourn  to 
meet  at  nine  o'clock. 


99 

The  Chairman:    The  motion  is  that,  when  you  adjourn,  you 
adjourn  till  nine  o'clock.     All  those  in  favor  say  aye. 
The  motion  prevailed. 

Number  6.     Length  of  Waiting  Period? 

The  Chairman:   I  suggest  two  weeks. 

Mr.  Golden:  In  case  they  are  sick  five  weeks,  do  they  get 
paid  for  the  first  two  weeks? 

The  Chairman:  Not  as  I  understand  it.  If  they  are  sick 
five  weeks,  they  get  paid  for  the  third,  but  not  for  the  first  two. 
If  they  are  sick  three  years,  they  get  paid  for  all. 

Mr.  Gillette:  I  would  hke  to  have  those  who  represent 
the  labor  people  think  over  night  of  a  proposition  of  changing 
that  from  two  to  three,  and,  in  lieu  of  that,  furnishing  hospital 
and  medical  attendance,  and  see  what  would  be  the  best. 

The  Chair:  Well,  do  you  make  that  as  a  motion? 

Mr.  Gillette:  No,  I  would  not.  But  just  have  it  generally 
understood. 

The  Chairman  :  Is  it  the  sense  of  the  meeting  that,  if  the  men 
especially  appointed  to  represent  the  labor  interests  think  they 
would  rather  have  hospital  and  doctor  bills  and  three  weeks  or 
two,  they  may  have  the  privilege  of  taking  that  up  in  the  morning? 

Mr.  Gillette:  I  think  personally  that  is  one  of  the  most  impor- 
tant things.     To  the  average  man,  that  means  a  very  great  deal. 

The  Chairman  :  The  two  weeks'  waiting  period? 

Mr.  Gillette:  No,  sir,  the  surgical  and  hospital  service — I 
speak  from  the  employers'  standpoint — is  for  the  interest  of  the 
employer  to  see  that  that  man  from  the  very  start  of  his  injury 
has  the  very  best  sort  of  hospital  care  and  surgical  attendance. 
Otherwise,  very  serious  consequences  might  flow  from  the  ill 
care  of  injury.  If  we  could  do  both,  if  we  could  have  two  weeks 
and  also  give  the  surgical  and  medical  attendance,  I  would  like 
to  see  it  done,  but  I  don't  believe  we  can  do  it  within  any  reason- 
able limits.  I  would  like  to  impose  it  upon  them,  but,  if  they 
could  see  their  way  clear  to  figure  it  out  some  way,  I  believe  from 
every  standpoint  it  would  be  a  very  advisable  thing  to  do. 

The  Chairman:  I  would  like  to  make  this  suggestion  about 
that.  It  seems  to  me  it  might  be  a  business  proposition  from 
the  employer's  standpoint,  after  my  experience  in  Europe,  to 
take  care  of  the  hospital  bills  and  the  doctor's  bills  during  the 


100 

first  two  weeks  free  of  charge.  I  think  he  would  make  money 
out  of  it  in  the  end. 

Mr.  Gillette:  But  it  is  all  an  element  of  cost. 

Mr.  Golden:  I  believe,  if  any  person  gets  injured,  two  weeks 
is  long  enough  for  us  to  wait  for  pay,  and  the  very  least  the  em- 
ployer can  do  is  to  pay  hospital  and  medical  bills,  whatever  might 
be  used  on  the  man.  I  think  two  weeks  is  long  enough  time  for 
a  man  to  wait.  Three  weeks  is  too  long.  I  think  that  we  made 
ours  one  week. 

The  Chairman  :  The  proposition  on  the  motion  was  two  weeks, 
and  that  you  gentlemen  get  together  and  decide  what  you  thought 
about  the  hospital  bills  in  the  morning,  and  have  the  privilege  of 
bringing  it  up. 

Mr.  Golden:  I  shan't  be  here  in  the  morning. 

The  Chairman:  Then  I  would  like  to  hear  what  you  have  to 
say. 

Mr.  Golden:  I  think  two  weeks  is  plenty  long  to  wait,  and 
they  ought  to  receive  hospital  bills  and  medicine,  and  whatever 
stuff  they  need  while  they  are  sick  the  first  two  weeks,  free  of 
charge. 

The  Chairman  :  Let  me  ask  you  this.  I  think  one  of  the  most 
dangerous  questions  in  this  whole  proposition  is  the  doctor  ques- 
tion. Do  you  think  the  laboring  man  would  be  willing  to  accept 
the  employer's  doctor,  if  he  had  the  privilege  of  calling  in  a 
neutral  doctor? 

Mr.  Golden:  Well,  if  they  didn't  want  to  take  the  company's 
doctor,  they  could  call  in  their  own  doctor.     That  is  up  to  them. 

The  Chairman  :  Are  you  ready  to  vote  on  this  question? 

Mr.  Howard:  I  would  like  to  amend  that  by  definitely  adding 
medical  attendance  and  hospital  fees  for  the  first  two  weeks. 

The  Chairman:  We  will  leave  that  to  the  morning  and  see. 

Mr.  Neill  :  Is  it  distinctly  understood  that  the  waiting  period 
— ^that  under  no  conditions  are  they  paid  for  two  weeks? 

The  Chairman:  Under  no  conditions.  Now  all  in  favor  say 
aye. 

The  motion  prevailed. 

The  Chairman  :  Now,  gentlemen,  I  think  you  gentlemen  who 
represent  the  laboring  interests  will  let  us  know  in  the  morning 
what  your  judgment  is. 

Mr.  Doten:  It  occurred  to  us  in  arranging  for  this  meeting 
that  it  might  be  desirable  to  visit  the  plant  of  the  Illinois  Steel 


101 

Company  and  see  their  methods  of  accident  prevention.  They 
have  done  a  great  deal  in  that  line,  perhaps  more  than  any  other 
constituent  body  of  the  United  States  Steel  Corporation.  I  wrote 
to  Mr.  Robinson,  vice-president  of  the  company,  and  secured  his 
permission,  so  that,  if  we  so  desire,  we  may  visit  their  plant  to- 
morrow afternoon,  and  inspect  their  methods  of  handling  the  whole 
subject  of  compensation  as  well  as  their  methods  of  accident 
prevention.  If  we  do  that,  of  course,  we  should  probably  have 
to  hold  an  evening  session.     I  simply  make  the  suggestion. 

Number  7.    Shall  Dependants  include  Aliens  and  Illegiti- 
mate Relations? 

Mr.  Lowell:  Mr.  Chairman,  I  should  be  thoroughly  in  favor 
of  saying  no  to  that  question,  except  for  this  reason:  Mr.  Doten 
has  suggested  to  me,  and  I  think  there  is  very  great  danger,  that, 
if  we  say  that  people  who  have  dependants  in  Finland,  for  in- 
stance, those  dependants  shall  recover  nothing,  it  might  very  well 
happen  some  unscrupulous  employer  might  say,  "Well,  I  will 
have  all  Finns  in  my  employ,  because  I  won't  have  to  pay  their 
widows  anj^hing."  That  is  a  situation  that  will  bear  careful 
thinking. 

Mr.  Doten:  I  feel  that  there  is  serious  danger  that  there  will 
be  serious  discrimination  against  our  native  Americans  if  we  put 
in  that  provision, — a  serious  discrimination  in  favor  of  unattached 
foreigners  without  dependants  in  this  country. 

Mr.  McEwen  :  I  can  see  force  on  both  sides  of  this  argument. 
We  have  in  the  northern  part  of  our  State  twelve  to  fifteen  thou- 
sand aliens  who  are  simply  here  temporarily  and  who  are  going 
back  to  the  old  countrj^  There  is  an  endless  chain  of  them  pass- 
ing in  and  out.  If  we  could  have  it  so  fixed  that  the  dependants 
of  a  person  killed  who  has  been  a  resident  of  the  country  for  a 
certain  period  of  time,  we  ought  to  do  so  and  encourage  the  fellow 
who  wants  to  come  over  here  and  bring  his  family  and  in  a  genera- 
tion or  so  develop  good  Americans;  but  the  man  who  is  here  for 
five  years  and  leaves  his  family  in  the  old  country,  there  might 
be  some  exception  in  a  case  of  that  kind.  For  the  fellow  who 
comes  here  to  work  two  or  three  years,  I  can  see  the  force  of  Mr. 
Lowell's  opinion  that  that  would  be  encouraging  their  employ- 
ment to  the  detriment  of  natives. 

Mr.  Doten:    In  reply  to  what  Mr.  McEwen  said,  it  is  this 


102 

body  of  birds  of  passage  that  we  speak  of  that  we  do  want  to 
discourage.  We  want  to  discourage  employers  from  stimulating 
their  migration,  as  they  undoubtedly  do  in  some  cases.  If  we 
cut  them  out,  although  it  is  very  desirable  to  cut  them  out,  we 
emphasize  the  very  thing  we  don't  want. 

Mr.  Gillette:  I  know  some  of  our  railroad  people  there  em- 
ploy a  whole  lot  of  Italians  and  Greeks,  and  they  never  bring 
their  families  to  this  country.  They  don't  deposit  a  dollar  in 
the  Minneapolis  banks.  There  is  one  Italian  bank  in  Chicago 
where  it  goes,  and  some  in  New  York  till  they  get  ready  to  go  back. 
Now  the  whole  theory  of  compensation  law  is  the  theory  that 
we  shall  not  cast  on  American  society  our  wreckage,  but  I  never 
heard  before  that  the  purpose  of  this  act  was  to  take  care  of  a 
lot  of  Dagoes  over  in  the  old  country. 

Mr.  Doten:  I  regret  that  that  would  be  the  effect  of  it,  but 
I  think  you  would  get  a  whole  lot  more  of  these  birds  of  passage 
if  you  don't  do  it. 

The  Chairman  :  I  remember  of  being  up  in  Duluth  when  they 
had  a  strike  up  there,  and  they  told  me,  as  soon  as  the  strike  was 
declared  on,  there  were  two  thousand  Italians  went  down  to  the 
station  and  bought  tickets  for  Europe  to  spend  the  winter. 

Mr.  Neill:  It  seems  to  me  that  we  put  this  country  in  a  very 
unenviable  position,  if  we  say  we  are  perfectly  willing  to  have 
our  Dagoes  come  in  here  and  do  good  work,  but,  if  they  are  killed 
in  helping  us  to  build  up  our  railroads,  their  families  can  go  hun- 
gry. I  should  be  opposed  to  any  modification  of  the  law  that 
would  make  the  slightest  distinction. 

Mr.  Gillette:  We  don't  say  we  want  them  to  come  in  here. 
We  say  by  our  alien  laws  that  we  don't  want  them  to  come  in. 

Mr.  Neill:  They  are  coming  in  now,  Mr.  Gillette.  The  ques- 
tion is,  when  they  come  in,  whether  the  preference  is  going  to 
be  given  to  them  or  to  native  Americans. 

Mr.  Gillette:  Why  not  go  to  work  and  make  them  become 
citizens  in  order  to  acquire  the  benefits  of  this  law? 

The  Chairman:  Do  you  mean  to  limit  this  to  those  who  are 
citizens  of  the  country  or  those  who  in  good  faith  expect  to  be- 
come citizens?  If  their  families  were  here,  they  would  be  here 
already. 

Judge  Holloway:  I  was  just  going  to  suggest,  Mr.  Chairman, 
that  our  treaty  makes  the  distinction  between  resident  and 
non-resident  aliens.     If  we  attempt  to  exclude  resident  aliens,  we 


103 

would  probably  be  attempting  to  enact  laws  that  would  be  un- 
constitutional. In  fact,  I  think  they  would  be  unconstitutional 
under  our  State  constitutions:  you  can  discriminate  against  the 
non-resident  alien,  but  you  cannot  discriminate  against  the  resi- 
dent alien. 

The  Chairman:  Then  you  had  better  have  this  question  read: 
"Shall  this  include  non-resident  aliens?"  All  in  favor  of  that 
will  say  aye. 

Mr.  McEwen:  Cannot  we  sleep  over  that? 

Mr.  Doten:  I  can  conceive  of  a  situation  where  it  would  be 
very  favorable  to  residents  along  the  Canadian  border  to  come 
across  and  be  employed  under  entirely  different  conditions  from 
those  who  happen  to  reside  a  few  rods  further  south,  if  we  say 
resident  and  non-resident,  and  I  think  the  fact  of  residence  is 
difficult  to  establish. 

The  Chairman:  This  is  the  residence  of  the  family  or  de- 
pendants? 

Mr.  Gillette:  That  is  where  you  want  to  make  the  distinc- 
tion. 

The  Chairman  :  If  they  come  over  for  a  couple  of  weeks,  they 
are  not  residents. 

Mr.  Boyd:  The  Montana  act  excludes  dependants  who  are 
non-resident  aliens  from  taking  benefits. 

The  Chairman  :  How  many  are  willing  to  vote  on  that  question 
now? 

Mr.  McEwen  :  What  do  you  mean  by  aliens? 

The  Chairman:  A  foreign  citizen. 

Mr.  McEwen:  Supposing  their  families  are  in  the  United 
States. 

The  Chairman:  They  would  be  residents.  We  are  talking 
about  non-residents,  those  who  are  not  living  here. 

Mr.  McEwen:  I  understand.  Then,  of  course,  this  other 
question  comes  up  again, — I  think  it  was  brought  out  by  Mr. 
Lowell  and  confirmed  by  Mr.  Neill, — as  to  the  encouragement 
of  the  employment  of  the  migratory  laborers  at  the  expense  of 
the  native  labor. 

The  Chairman:  As  I  view  this  rule,  this  does  not  include  the 
man  who  is  not  a  non-resident.  He  can  leave  and  go  to  any 
country  he  pleases,  unless  you  put  a  limitation  in  this  like  some 
countries,  and  do  not  allow  that  in  their  laws,  but  only  include  the 
grandparents. 


104 

Mr.  McEwen  :  It  would  only  apply  in  fatal  cases? 

The  Chairman:  That  is  all. 

Mr.  McEwen:  I  can  tell  you  this,  when  a  man  is  killed  in  a 
mine  in  Northern  Minnesota,  and  there  is  a  chance  for  a  five- 
thousand-dollar  death  claim,  we  seldom  hear  from  the  widow 
or  the  dependant  of  the  man  in  the  old  country.  We  find  some 
person  who  is  appointed  administrator  of  the  estate  over  here,  and 
he  usually  gets  all  the  money.     Very  little  of  it  ever  gets  abroad. 

The  Chairman:  I  understand  that  is  done  here  in  the  city  of 
Chicago  sometimes.  All  in  favor  of  the  proposition  that  the  act 
shall  not  include  the  dependants  who  are  non-resident  aliens  say 
aye. 

The  motion  prevailed. 

Mr.  Rohr:  I  move  that  illegitimate  children  be  excluded  from 
the  act. 

Mr.  Alexander:  When  the  English  act  was  passed,  concerning 
illegitimate  descendants,  it  was  rather  obnoxious  to  me;  but,  the 
more  I  think  about  it,  the  better  do  I  like  it.  Now,  if  I  should 
commit  the  immoral  act,  I  certainly  have  the  moral,  if  not  the  legal 
obligation  to  look  after  the  child. 

The  Chairman:  In  some  States  you  would  have  a  legal  obli- 
gation. 

Mr.  Alexander:  And  if  I  should  be  permanently  disabled 
or  if  I  should  die  in  the  course  of  employment,  should  the 
mother,  who  still  cares  for  the  child  and  supports  the  child,  not 
be  protected  both  for  herself  and  the  child,  just  as  if  I  had  brought 
the  child  into  the  world  legitimately? 

Mr.  Lowell:  Mr.  Chairman,  just  this  suggestion.  If  it  be 
desired  to  include  illegitimate  children  of  any  kind,  you  should 
certainly  have  only  those  that  are  acknowledged :  otherwise,  every 
single  case  that  arose,  there  would  be  at  least  three  lawsuits  by 
people  claiming  to  be  illegitimate  descendants. 

Mr.  McEwen:  Let  me  make  another  suggestion.  Those 
that  are  acknowledged  and  dependent  on  the  deceased  at  the  time 
of  the  accident. 

Mr.  Bailey:  It  seems  to  me  the  New  York  act,  as  I  recall  it, 
covers  the  thing  without  saying  anything  about  illegitimate  chil- 
dren. It  says  dependants.  Now,  if  they  are  actually  dependent, 
they  suffer.  We  are  going  to  take  care  of  the  people  who  are 
actual  sufferers,  and  we  need  not  bring  into  the  act  discrimina- 
tion as  to  legitimate  or  illegitimate.     If  they  are  dependent, 


105 

that  is  a  matter  of  fact,  and  I  don't  think  you  need  say  a  word 
about  it. 

The  Chairman  :  In  Minnesota  we  say  if  they  are  acknowledged 
and  found  to  be  legitimate. 

Mr.  Schutz:  I  move  those  words  "and  illegitimate  relations" 
be  stricken  out  from  the  question. 

Mr.  Boyd:  I  second  the  motion. 

The  Chairman:  With  the  understanding,  I  suppose,  that  it 
will  be  covered  by  the  word  "dependants." 

Mr.  Boyd:  Yes. 

Mr.  Doten:  Before  we  leave  this,  it  seems  to  me  we  should 
consider  the  question  of  what  the  term  "dependants"  should 
include. 

The  Chairman:  I  think  that  is  a  very  important  question 
myself. 

Mr.  Dickson:  Would  not  they  be  governed  by  the  various 
State  laws? 

Mr.  Neill:  You  will  have  to  go  further  even  than  that.  We 
have  had  in  the  administration  of  the  Federal  law  that  question 
arise.  There  are  wholly  and  partially  dependent  parents.  A 
parent  may  not  be  wholly  dependent  on  a  son,  but  receive  a  cer- 
tain amount.  In  a  case  of  that  kind  we  ought  not  to  make  a 
recommendation  that  will  include  the  payment  to  the  dependent 
parents  over  what  they  are  getting  from  the  son,  so  that  the 
whole  question  of  parents  will  have  to  be  threshed  out. 

The  Chairman:  I  would  like,  with  the  consent  of  this  meeting, 
to  appoint  a  committee  of  three  to  report  back  to-morrow  what 
they  think  ought  to  be  considered  dependants. 

Mr.  McEwEN :  I  make  that  as  a  motion. 

The  Chairman:  I  will  appoint  Mr.  Boyd  and  Mr.  McEwen 
and  Mr.  Bailey  to  report  back  here  in  the  morning  a  general 
classification  for  dependants.  Now  is  there  anything  else  we 
need  to  take  up  now? 

On  motion  the  Conference  adjourned  until  nine  a.m.  the  fol- 
lowing morning. 


106 


Third  Session,  Friday,  November  11,  1910,  9  A.M. 

The  third  session  of  the  Conference  was  called  to  order  at  nine 
A.M.  by  Chairman  Mercer. 

The  Chairman:  Is  the  Committee  on  Dependants  ready  to 
report? 

Mr.  Boyd  :  Mr.  Chairman,  in  comparing  the  different  acts,  the 
committee  decided  to  recommend  the  following  definition  for 
dependant,  under  Query  7,  in  this  manuscript  set  of  queries : — 

"Dependants  shall  mean  such  members  of  the  employee's  family 
or  next  of  kin  as  were  entirely  or  partly  dependent  on  his  earnings 
at  the  time  of  his  death.  Dependants  shall  not  include  aliens 
residing  outside  the  United  States." 

We  did  not  think  it  wise  to  give  a  particular  definition  of  the 
word  "family"  in  more  detail,  on  the  ground  that  it  would  invite 
all  kinds  of  attack.  It  would  invite  the  attack  of  the  clergy  and 
people  that  were  specially  fond  of  common  law  technicalities,  and 
we  thought  it  best  to  leave  it  in  that  form  as  an  initial  definition. 

The  Chairman:  You  have  heard  the  report,  gentlemen.  What 
shall  we  do  with  it? 

Mr.  Rohr:  I  move  its  adoption. 

Mr.  McEwen:  I  second  the  motion. 

Mr.  Lowell:  I  merely  want  to  ask  Mr.  Boyd.  You  don't 
define  who  dependants  are. 

Mr.  Boyd  :  Who  constitute  the  family. 

Mr.  Lowell:  Who  constitute  the  family?  The  family  or 
next  of  kin? 

Mr.  Boyd:  "Dependants  shall  mean  such  members  of  the 
employee's  family  or  next  of  kin  as  were  entirely  or  partly  de- 
pendent upon  his  earnings  at  the  time  of  his  death.  Dependants 
shall  not  include  aliens  residing  outside  the  United  States." 

Mr.  Lowell:  Mr.  Chairman,  there  is  one  merely  minor  criti- 
cism, that  you  should  say  "dependants  at  the  time  of  the  acci- 
dent," the  reason  for  that  being  the  courts  in  England  have 
refined  on  this  thing,  and  have  said  there  was  not  anybody  de- 
pendent at  the  time  of  his  death,  in  this  situation,  where  he  was 
not  instantly  killed. 

Mr.  Boyd:  We  will  change  that  without  further  argument. 

The  Chairaian:   On  the  other  hand,  you  might  have  this  con- 


107 

dition  arise:  you  might  have  some  person  that  was  a  dependant 
in  the  way  of  a  father  or  mother  or  a  grandmother;  he  might 
be  a  dependant  at  the  time  he  was  hurt,  yet,  if  he  Hved  a  few 
months,  they  might  be  dead,  and  the  result  might  be  to  fix  your 
liabiUty  so  that  the  rights  would  descend  to  the  other  heirs  of 
the  ancestor. 

Mr.  Bailey:  If  a  person  ceases  to  be  a  dependant,  either  by 
death  or  marriage  or  otherwise,  the  court  would  perhaps  do  more 
for  the  remaining  dependants. 

The  Chairman  :  My  only  point,  Mr.  Bailey,  was  to  have  some- 
thing in  that  clause  which  would  say  so  long  as  they  remained 
dependent. 

Mr.  Lowell:  That  brings  in  the  trouble  which  is  fairly  seri- 
ous, and  that  is  this:  supposing  the  employee  was  insured,  had 
life  insurance,  then  his  widow  is  not  dependent  after  the  life 
insurance  falls  in,  perhaps;  but  at  the  same  time  do  we  want  to 
put  in  any  act  which  will  prevent  the  employee's  saving  in  order 
to  have  life  insurance?  So  it  seems  to  me  that  that  should  not 
be  considered.  If  you  bring  that  in,  you — if  you  say  a  person 
who  becomes  dependent  after ^  then  you  are  preventing  an  em- 
ployee from  getting  life  insurance.  Of  course,  the  whole  thing 
we  want  to  get  at  is  to  make  everybody  as  thrifty  as  possible. 

Mr.  Bailey:  I  think,  Mr.  Chairman,  we  must  not  have  too 
many  refinements.  These  will  gradually  grow  up.  We  have  to 
start  simply,  and  meet  the  troubles  as  they  come  rather  than  to 
have  so  many  details  that  they  will  cover  up  the  main  features. 

Mr.  Boyd  :  The  gist  of  the  matter  is,  the  clause  which  creates 
dependence  is  put  in  operation  at  the  time  of  the  accident.  Now, 
if  you  cover  that,  I  think  that  is  sufficient  for  the  general  prop- 
osition. 

Mr.  Neill:  Why  not  leave  it  as  it  was,  "dependent  at  the 
time  of  the  accident,"  and  let  it  stay  right  there? 

The  Chairman:  That  is  all  right,  except  you  might  have  this 
situation  arise:  a  man  might  lose  an  arm,  and  you  might  have 
children  more  than  nine  months,  as  the  Supreme  Court  of  Minne- 
sota said,  "from  a  wholly  independent  cause,"  and  it  might  leave 
these  children  without  any  benefit  from  this  act  if  he  should  die 
after  three  years. 

A  Member:  Language,  "next  of  kin,"  will  bring  in  a  whole 
lot  of  troubles.  It  is  altogether  too  indefinite,  and  will  produce 
a  great  many  bogus  claims,  and  I  strongly  urge  that  something 


108 

more  specific  than  ''next  of  kin"  be  put  in.  You  don't  want  pay- 
ment to  go  to  a  remote  gentleman,  who  may  have  had  a  remit- 
tance some  years  before,  who  will  not  be  needy  in  fact,  but  whose 
representative,  so-called  representative,  will  make  a  claim  on  his 
behalf  and  will  pocket  the  amount  allotted,  as  his  fee.  That  is  a 
very  common  practice  out  in  certain  districts,  and  I  think  you 
must  specify  more  definitely,  and  eliminate  this  gentleman  known 
as  the  next  of  kin. 

The  Chairman:  Why  don't  you  put  it? 

A  Member:  "Family"  covers  practically  everybody  you 
want  to  take  care  of. 

Mr.  Lowell:  Does  not  ''family"  mean  those  living  with  the 
fellow? 

A  Member:  No,  it  has  been  defined  in  England  as  both  as- 
cendants and  descendants. 

Mr.  Lowell:  Whether  they  lived  with  him  or  not? 

A  Member:  Oh,  yes,  whether  they  lived  with  him  or  not. 

The  Chairman:  There  might  be  a  case  of  a  brother  and  sister 
living — 

Mr.  McEwen:  "Members  of  the  family  dependent  or  partially 
dependent  at  the  time  of  the  accident." 

The  Chairman:  You  think  the  "family"  definition  would 
include  brother  and  sister? 

Mr.  McEwen:  It  does  include  it  under  the  conunon  law. 

The  Chairman:  If  we  had  any  doubt  about  it,  we  could  define 
in  the  act  what  "family"  meant  under  the  definition  of  words  and 
phrases  in  the  act. 

Mr.  Boyd:  "Members  of  family"  mean  wife,  husband,  father, 
mother,  grandfather,  grandmother,  step-mother,  step-father, 
son,  daughter,  grandson,  grand-daughter,  stepson,  step-daughter, 
sister,  brother,  half-brother,  half-sister. 

Mr.  Lowell:  That  is  the  phrase  under  the  1906  act.  I  be- 
lieve they  found — Mr.  Packer  will  correct  me  if  I  am  not  right — 
that  under  the  1907  act  it  did  not  include  step-children. 

Mr.  Boyd  :  Now  the  National  Civic  Federation  Bill,  section  7, 
paragraph  K,  says,  "Dependents  mean  such  members  of  the 
workman's  family  as  were  wholly  or  in  part  dependent  on  the  work- 
man at  the  time  of  the  accident.  And  members  of  a  family  for 
the  purpose  of  this  act,  mean  only  widow  or  husband,  as  the  case 
may  be,  and  children,  or  if  no  widow  and  husband  and  children, 
then  parents  and  grandparents.     Or  if  no  parents  or  grandpar- 


109 

ents,  then  grandchildren.  Or  if  no  grandchildren,  then  brother 
and  sister.  In  the  meaning  of  this  section,  parents  includes 
step-parents,  children  and  grandchildren  includes  step-children 
and  step-grandchildren,  and  brothers  and  sisters  includes  step- 
brothers and  stepHsisters." 

A  Member:  *'As  to  the  persons  entitled  under  the  English 
acts  to  receive  compensation,  though  the  definition  of  working- 
man  in  the  act  was  wide,  covering  all  employees  whether  a  man 
labors  or  otherwise,  the  committee  recommended  the  inclusion 
of  brothers  and  sisters  in  beneficiaries."  You  see,  the  old  act 
had  not  covered  them,  because  it  only  covered  what  was  covered 
in  the  other  act.  It  did  not  include  brother  and  sister  in  addition 
to  the  dependants  and  ancestors.  This  was  opposed  by  employers, 
who  had  said  it  would  tend  to  increase  their  difiiculties,  and  that 
they  now  had  to  pay  compensation  exceeding  what  was  neces- 
sary for  the  support  of  the  dependants,  as,  for  instance,  to  pay  a 
father,  earning  good  wages,  for  the  death  of  a  son,  provided  the 
son  contributed  slightly  to  the  family  sum. 

Now  the  point  was  that  they  covered  the  family,  and  the  new 
act  extended  it  to  cover  brothers  and  sisters  and  to  cover  illegiti- 
mates. 

The  Chairman:  Now  we  have  been  discussing  this  informally 
without  any  motion  to  amend. 

Mr.  Bailey  :  In  the  New  York  law  as  it  is  now  they  kept  very 
broad  on  that  subject.  They  simply  said  ''next  of  kin  who  are 
dependent,"  as  I  recall  it,  and,  if  we  can  avoid  details  with  some 
advantage  and  leave  those  to  come  at  a  later  time,  I  think  that 
we  had  better  do  so. 

The  Chairman:  I  want  to  say  that  I  have  not  looked  into  it 
from  this  specific  standpoint,  but  I  think,  before  any  law  is  put 
in  final  shape,  we  should  certainly  want  to  study  the  question  as 
to  whether  or  not  the  acts  would  be  constitutional  if  we  did  not 
let  it  follow  the  same  methods  of  defining  dependants  of  other 
estates  in  case  of  death.  I  mean  the  other  estates  in  the  State. 
That  is,  as  to  whether  there  would  be  equality  of  laws. 

Mr.  Lowell:  Mr.  Chairman,  it  seems  to  me  that  the  kind  of 
a  definition  which  has  been  offered  here  would  be  an  excellent  one 
for  this  Conference  to  adopt.  But  I  think  you  will  want,  before 
you  adopt  your  laws  in  every  State,  to  see  whether  the  word  "fam- 
ily" has  not  been  construed  by  some  decision  which  might  make 
the  law  different  from  what  we  wanted  it.     I  do  not  think  we 


110 

want  to  go  into  those  details  here,  but,  before  we  draw  the  law  in 
each  State,  we  want  to  look  at  that. 

A  Member:    Do  you  want  to  include  next  of  kin? 

The  Chairman:  That  is  the  only  objection  I  have  in  that 
definition. 

Mr.  Boyd:  We  left  it  ''family"  because  the  different  States 
have  different  definitions  of  family.  Now  in  Ohio,  for  example, 
an  illegitimate  chil'd  living,  say,  in  West  Virginia,  and  its  father 
dies  in  Ohio,  not  making  a  will,  but  by  correspondence  and  by 
sending  of  a  small  amount  of  money  from  time  to  time  it  becomes 
an  heir  to  his  estate  by  statute. 

The  Chairman:  Well,  I  suppose  you  do  not  mean  the  family 
in  the  sense  of  the  old  Roman  paterfamilias  dqctrine,  but  in  the 
sense  that  has  been  defined  in  the  English  act,  practically,  don't 
you? 

Mr.  Bailey  :  I  believe  they  have  gone  outside  of  the  roof. 

The  Chairman  :  It  would  not  need  to  be,  because  if  it  was— - 
it  ought  not  to  be,  because  if  it  was,  it  would  deprive  a  man  of 
supporting  his  father  and  mother  if  they  did  not  happen  to  live 
right  within  the  house  with  him. 

Mr.  Bailey:  I  am  not  very  keen  on  those  words  "next  of  kin," 
if  you  have  family. 

The  Chairman:  If  you  make  your  "family"  broad  enough,  I 
should  say  leave  out  "next  of  kin." 

Mr.  Boyd:  Then  it  would  read  this  way:  "such  members  of 
the  employee's  family  as  were  entirely  or  partly  dependent  upon 
his  earnings  at  the  time  of  the  accident." 

Mr.  Wigmore:   Can  the  matter  of  aliens  be  separated  out? 

The  Chairman:  I  have  that,  Mr.  Wigmore. 

Mr.  Boyd:  Just  for  Mr.  Wigmore's  benefit,  "Dependants 
shall  not  include  aliens  residing  outside  of  the  United  States." 

Mr.  Wigmore:  I  want  to  vote  that  it  shall,  and  that  is  what 
I  mean  by  asking  if  you  are  putting  the  question. 

The  Chairman:   State  your  reasons,  please. 

Mr.  Wigmore:  We  see  a  great  deal  in  this  part  of  the  world 
of  the  killing  of  aliens  not  citizens,  and  the  train  sweeps  round 
the  curve  and  knocks  four  hundred  and  fifty  Greek  or  Italian 
or  Hungarian  laborers  into  eternity.  So  often  does  that  sort  of 
thing  happen — I  am  acquainted  very  well  with  the  Hungarian 
consul  in  Cleveland — that  the  question  is  a  very  important 
one  from  the  point  of  view  of  dependent  persons,  I  don't  say 


Ill 

employees;  and  I  have  seen  and  heard  so  much  of  the  litigation 
undertaken  by  consuls  here  to  protect  the  rights  of  their  coun- 
trymen that  I  personally  have  always  wanted  to  see  the  doctrine 
of  the  Kellyville  Coal  Case  made  to  include  the  non-resident  de- 
pendants of  aliens,  simply  for  the  moral  effect  on  the  man  who 
puts  the  others  into  eternity.  I  would  like  to  see  this  Commis- 
sion, in  trying  to  regulate  employer  and  employee,  not  lend  its 
moral  weight  in  favor  of  the  unjust  doctrine  that  the  dependants 
of  an  alien  cannot  recover  when  that  alien  is  a  person  injured  by 
a  wrong-doer's  act. 

Mr.  Boyd:  Mr.  Chairman,  cannot  we  divide  that  question, 
and  settle  Professor  Wigmore's  question  a  little  later  as  to  whether 
we  drop  out  ''next  of  kin"? 

The  Chairman:  The  motion  is  to  strike  out  "next  of  kin." 
Are  you  ready  for  the  question? 

The  question  was  then  put,  and  the  motion  prevailed. 

The  Chairman:  Now  are  you  ready  for  the  question  still 
leaving  out  the  alien  question? 

Mr.  Saunders:  "Dependants  shall  mean  such  members  of 
the  employee's  family  as  were  entirely  or  partly  dependent  on 
his  earnings  at  the  time  of  the  accident." 

The  question  was  called  for. 

The  Chairman:  We  will  vote  on  that  question  if  you  are 
all  ready. 

The  question  was  then  put,  and  the  motion  prevailed. 

The  Chairman:  Now  that  disposes  of  that  element. 

Mr.  Boyd:  The  remainder  of  the  report  is,  "Dependants  shall 
not  include  aliens  residing  outside  of  the  United  States." 

Mr.  Doten:  Mr.  Chairman,  did  not  we  pass  on  that  yesterday, 
"shall  not  include  the  non-resident  dependants  of  aliens"? 

The  Chairman:  We  did  yesterday,  but,  when  we  referred 
this  whole  matter  to  the  committee  to  decide  what  dependants 
meant,  I  didn't  know  but  what  you  meant  to  open  up  that  ques- 
tion.    I  think  that  is  for  the  choice  of  the  committee. 

Mr.  Bailey:  I  should  Hke  to  explain  that  question.  With  us 
in  Massachusetts  a  party  living  in  New  Hampshire  is  a  non- 
resident.    We  thought  "non-resident"  was  ambiguous. 

Mr.  Boyd:  "Dependants  shall  not  include  aliens  residing  out- 
side the  United  States."     That  makes  it  perfectly  specific. 

The  Chairman:  That  was  the  language  yesterday,  as  I  under- 
stood it. 


112 

Mb.  Bailey:  No, ''non-resident." 

The  Chairman:  All  in  favor  of  this  report,  as  you  are  ready 
for  it,  make  known  by  saying  aye. 

The  motion  prevailed. 

The  Chairman:  That  passes  that  report.  There  was  another 
report,  Mr.  Saunders? 

Mr.  Saunders:  The  majority  of  your  committee  submit  the 
following  report: — 

"In  case  death  results  from  the  injury,  the  employer  shall 
pay  the  dependants  of  the  employee  wholly  dependent  upon  his 
earnings  for  support  at  the  time  of  the  accident  one-half  the  aver- 
age weekly  wages  of  the  deceased,  but  not  more  than  ten  dollars 
nor  less  than  five  dollars  a  week,  for  a  period  of  three  hundred 
weeks  from  the  date  of  the  accident,  together  with  the  cost  of 
medical  attendance  and  funeral  expenses,  not  exceeding  one  hun- 
dred dollars. 

"If  the  employee  leaves  dependants  only  partly  dependent 
upon  his  earnings  at  the  time  of  his  death,  the  employer  shall  pay 
such  dependants  a  weekly  compensation  equal  to  the  same  pro- 
portion of  the  weekly  payment  for  the  benefit  of  the  persons 
wholly  dependent  as  the  amount  contributed  to  such  partial 
dependants  bears  to  the  annual  earnings  of  the  deceased  at  the 
time  of  his  injury.  In  no  case  shall  the  period  covered  by  such 
compensation  be  greater  than  three  hundred  weeks  from  the  time 
of  the  accident. 

"If  the  employee  leaves  no  dependants,  the  employer  shall 
pay  the  reasonable  expenses  of  his  burial  and  last  sickness,  which 
shall  not  exceed  two  hundred  dollars. 

"In  case  of  permanent  total  incapacity  for  work,  resulting 
from  the  injury,  the  employer  shall  pay  the  injured  employee  a 
weekly  compensation  equal  to  one-half  of  his  average  weekly 
wages,  but  not  more  than  ten  dollars  or  less  than  five  dollars  a 
week,  for  a  period  of  three  hundred  weeks  from  the  date  of  the 
accident. 

"In  case  permanent  partial  incapacity  for  work  results  from 
the  injury,  the  employer  shall  pay  the  injured  employee  a  weekly 
compensation  equal  to  one-half  the  difference  between  his  aver- 
age weekly  wages  before  the  accident  and  the  average  weekly 
wages  he  is  able  to  earn  thereafter,  but  in  no  case  shall  such 
compensation  extend  beyond  a  period  of  three  hundred  weeks 
from  the  date  of  the  accident." 


118 

Now  I  might  say  that  that  is  submitted  by  Mr.  Gillette  and 
myself.  Mr.  Winans  reserves  the  right  to  submit  a  minority 
report. 

Mr.  Winans:  Mr.  Chairman,  on  behalf  of  labor,  I  desire  to 
submit  a  minority  report  in  so  far  as  the  maximum  and  mini- 
mum is  concerned.  Now  I  desire  this,  for  payment  of  partial 
disablement,  that  we  fix  fifty  per  cent,  of  the  allowance  to  be 
paid  of  the  earnings  for  a  period  of  ten  years,  with  a  maximmn  of 
five  thousand  dollars  and  a  minimum  of  three  thousand  dollars. 
That  is  to  cover  payment  of  partial  disablement.  And  for  pay- 
ment of  total  disablement  and  death  I  would  suggest  an  allow- 
ance of  sixty  per  cent,  of  the  actual  earnings  of  the  employee  to 
be  paid  for  a  period  of  ten  years,  with  a  maximum  of  six  thousand 
dollars  and  a  minimum  of  three  thousand  six  hundred  dollars. 

Now  I  submit  these  figures,  believing  that  it  is  only  fair  and 
proper,  taking  into  consideration  the  necessity  of  providing  for 
the  widow  and  the  little  children  at  the  death  of  the  husband. 
Or,  in  case  of  total  disablement,  we  recognize  this  fact,  that  there 
is  as  much  necessity  for  a  liberal  and  fair  allowance  to  be  paid 
in  that  case  as  when  in  death,  because,  take  a  man  that  is  perma- 
nently and  totally  disabled,  by  the  loss  of  both  limbs  or  arms,  he 
is  a  burden  on  his  family.  Therefore,  the  allowance  should  be 
made,  in  my  judgment,  greater.  But  I  am  submitting  those 
figures  for  your  consideration. 

Mr.  Saunders:  I  move  the  adoption  of  the  majority  report. 

Mr.  Lowell:  I  second  the  motion. 

Mr.  Rohr:  I  move  the  adoption  of  the  minority  report. 

Mr.  McEwen:  I  second  the  motion. 

Mr.  Neill:  May  I  suggest  now,  Mr.  Chairman?  I  do  not 
think  any  of  us  know  what  the  real  difference  between  the  reports 
is,  and  if  it  was  put  to  a  vote,  as  it  was  yesterday,  there  may  be 
a  vote  against  it,  and  every  member  voting  against  it  for  a  differ- 
ent reason.  I  suggest  we  take  it  up  item  by  item,  and  find  out 
first  about  the  maximum  allowance. 

The  Chairman:  If  that  is  the  sense  of  the  meeting,  I  am  will- 
ing to  state  it  in  that  way.  As  I  understand,  the  majority  report 
recommends  a  maximum  of  ten  dollars  per  week  for  three  hun- 
dred weeks,  and  not  to  exceed  fifty  per  cent,  of  the  wages,  not  to 
exceed  ten  weeks,  and  not  to  exceed  longer  than  three  hundred 
weeks. 

Mr.  Neill:  I  suggest  we  take  the  first  question,  percentage 
of  wages,  and  see  where  we  stand  on  that. 


114 

The  Chairman:  Now  as  to  the  limitation  of  ten  dollars  a 
week,  let  us  take  that  up  first.  Are  you  ready  for  the  question 
as  to  whether  or  not  you  shall  put  that  in?  I  understand  that 
is  what  the  record  raises  now.  Shall  you  say  ten  dollars  a  week 
shall  be  the  limit,  or  shall  a  man  have  full  fifty  per  cent.?  Are 
you  ready  for  the  question? 

The  question  was  called  for. 

Mr.  McEwen:   Fifty  per  cent.,  based  on  what? 

The  Chairman:   On  the  average  weekly  wage. 

Mr.  McEwen  :  I  want  to  speak  on  that  point  of  average  weekly 
wage,  and  show  you  how  easily  a  manufacturer  and  employer  is 
going  to  get  out  of  this,  and  what  an  injustice  is  liable  to  be  done 
to  the  workingman.  Now  there  are  going  to  be  a  large  number 
of  accidents  such  as  are  now  due  to  the  negligence  of  the  employer. 
The  men  who  work  for  fifty-two  weeks  a  year  are  usually  the 
low-waged  kind.  With  machinists,  and  the  men  who  work  in  shops, 
who  have  trades,  that  may  be  the  exception,  but  with  building 
mechanics  it  is  not  the  exception.  I  am  a  plumber  by  trade. 
We  never,  in  my  fifteen  years^  experience  of  plumbing,  worked 
more  than  forty  weeks  in  one  year.  You  strike  an  average  of 
fifty-two  weeks,  and  you  will  find  we  only  receive  the  wage  of 
the  ordinary  workman.  I  made  an  investigation  in  Minnesota 
of  almost  one  hundred  thousand  workingmen,  and  found  sixty- 
seven  thousand  received  two  dollars  a  day  and  less,  thirty-five 
thousand  receive  one  dollar  and  a  half  a  day  and  less.  I  have 
here  the  report  of  the  shoe  industry  of  Minnesota,  and  I  quote  that 
because  the  gentleman  from  Massachusetts  referred  to  it  yester- 
day. We  covered  an  investigation  of  twelve  hundred  and  thirty- 
one  employees  in  the  shoe  factories.  That  includes  every  person 
in  the  shoe  factory  who  receives  a  wage,  including  the  superin- 
tendent and  all  persons  in  the  factory,  except  the  officials.  We 
found  that  forty  and  sixty-seven  hundredths  per  cent,  received 
two  dollars  a  day  or  less,  twenty-six  and  sixty  hundredths  per 
cent,  received  two  dollars  to  two  seventy-five  a  day,  and  then 
it  begins  to  decrease  down  as  we  reach  five  dollars  and  a  half  a 
day.  Here  is  an  industry  in  which  the  people  may  be  employed 
for  a  period  for  twelve  months  without  any  cessation,  and  the 
most  that  any  person  under  this  act  would  receive  would  be  six 
dollars  per  week.  I  can  conceive  that  the  chances  in  an  indus- 
try like  the  shoe  industry  for  permanent  disability  are  extremely 
remote.    It  is  a  non-hazardous  industry.    There  may  be  pinched 


115 

fingers  or  cuts  from  a  knife,  but  any  kind  of  injury,  except  in 
rare  instances,  would  only  go  from  one  to  two  and  not  more  than 
three  weeks,  unless  it  is  a  fall  down  an  elevator,  which  may  occur 
anywhere.  But  with  the  building  trades  and  with  the  work  out- 
side, where  they  depend  upon  the  elements  for  working  condi- 
tions, I  cannot  conceive  a  man  in  our  part  of  the  country  work- 
ing more  than  eight  months  in  the  year.  In  the  mines  up  north, 
in  the  open  pits,  they  do  not  work  more  than  eight  months  a 
year,  and  their  average  wage  there  is  two  fifty  a  day.  Then  you 
are  going  to  strike  an  average  for  fifty-two  weeks. 

Mr.  Saunders:  Is  not  your  difficulty  in  the  definition  of 
average  wage? 

Mr.  McEwen:  Well,  I  want  to  get  that  clear  in  my  mind. 

Mr.  Saunders:  Of  course,  average  wage  has  got  to  be  defined 
in  the  bill. 

The  Chairman  :  As  to  whether  it  depends  on  weekly,  monthly, 
or  yearly  wages? 

Mr.  Saunders:  Or  what  they  actually  earn. 

The  Chairman:  That  would  cover  that  point,  I  should  think. 
Most  of  the  acts  abroad  cover  that  in  some  form.  Now  let  me 
see  what  was  that  question  we  put  there?  Whether  a  ten-dollar 
limitation  should  exist  where  a  fifty  per  cent,  rate  is  above  it. 
Are  you  ready  for  the  question  on  that,  whether  or  not  the  com- 
pensation shall  be  limited  to  ten  dollars  a  week,  if  fifty  per  cent, 
amounts  to  more  than  ten  dollars  a  week?  All  in  favor  of  limit- 
ing it  to  ten  dollars  a  week,  let  it  be  known  by  saying  aye.  All 
who  are  opposed  to  limiting  it  to  ten  dollars  a  week  will  let  it 
be  known  by  saying  nay. 

A  viva  voce  vote  was  then  had,  and  the  affirmative  prevailed. 

Mr.  Neill:  What  are  the  two  reports  on  that  subject?  The 
majority  rule  is  ten  dollars  a  week.  What  is  the  minority 
report? 

The  Chairman:  The  minority  report  is  to  take  the  maximum 
off,  and  say  fifty  per  cent,  of  the  wage.  Now  we  had  the  question 
up  yesterday  as  to  whether  or  not  we  should  vote  on  three  hun- 
dred weeks  or  some  other  time,  but  this  report  raises  the  question 
directly  as  to  whether  we  should  limit  it  to  three  hundred  weeks 
or  whether  it  should  run  for  ten  years.  Are  you  ready  for  that 
question? 

Mr.  Lowell:  Mr.  Chairman,  I  want  to  say  just  one  word  here. 
We  all  of  us  want  to  do  the  best  we  can  for  the  employees.     There 


116 

is  not  anybody  in  this  room  who  would  not  back  that  statement 
up.  But  it  is  a  practical  question,  and,  as  a  matter  of  fact,  when 
you  go  to  cover  all  injuries,  you  have  got  certainly  in  the  first 
part  of  these, — experience  under  these  laws,  to  limit  it  very  low. 
I  always  look  at  this,  of  course,  from  the  standpoint  of  Massa- 
chusetts. You  have  got  to  have  a  limit  which  you  think  is  unfair 
to  the  employees  in  order  to  have  it  a  practical  matter,  if  you 
cover  all  employments,  which  we  have  agreed  to  do  in  this  matter. 

Now,  of  course,  the  practical  result  of  this  thing  is  that  you 
limit  the  compensation  to  three  thousand  dollars,  and  I  should 
say  that  of  course,  in  a  great  many  cases,  that  is  too  low.  If  you 
were  ordering  things, — were  a  benevolent  despot  and  were  order- 
ing things  the  way  you  want,  absolutely  independent  of  any 
financial  consideration, — you  would  put  it  higher,  but  in  Massa- 
chusetts you  are  going  to  cover  hundreds  of  thousands  of  accidents 
where  there  is  no  compensation  now,  and,  in  order  to  bring  those 
in  and  be  able  to  pay  for  them,  you  have  got  to  have  a  limit  at 
least  as  low  as  three  thousand  dollars. 

Mr.  Wigmore:  I  would  like  to  remind  the  gentlemen  who 
are  in  favor  of  a  higher  limit  that  this  is  more  or  less  of  a  com- 
'promise;  that  we  have  by  vote  already  put  out  of  existence  the 
four  limitations  which  hamper  the  workingman  to-day,  and  that 
in  return  for  that  the  compromise  ought  to  include  a  limitation 
of  the  total  amount  to  what  certainly  I  agree  and  others  say  is 
abstractedly  an  unfairly  low  limit.  That  is  a  very  large  conces- 
sion to  make  on  the  other  side,  and  this  is  a  very  small  con- 
cession to  make  on  this  side. 

Mr.  Doten:  I  want  to  say  that  we  have  talked  this  over  with 
the  labor  leaders  in  Massachusetts  in  our  conferences  and  at  our 
hearings,  and  they  have  generally  agreed  that,  if  there  is  a  possi- 
bility of  obtaining  three  thousand  dollars  without  expense,  with- 
out the  charge  of  lawyers'  fees,  etc.,  against  it,  and  immediately 
upon  the  occurrence  of  the  accident,  that  it  will  be  much  better 
than  the  five  thousand  dollars  which  they  have  been  entitled  to 
receive  under  the  Employers'  Liability  Act.  As  a  matter  of 
fact,  probably  in  not  one  case  in  a  hundred  where  a  verdict  amounts 
to  five  thousand  dollars  under  the  employers'  Uability  law 
does  the  injured  employee  receive  three  thousand  dollars  net. 
And,  if  he  does,  he  does  not  receive  that  amount  within  a  period 
of  three  years.  In  many  cases  it  is  four  or  five  years  before  he 
gets  it.     So  that  they  feel  in  Massachusetts  that  three  thousand 


117 

dollars,  or  instalments  which  in  the  end  will  equal  three  thou- 
sand dollars,  will  be  much  better  for  them  than  the  present 
law. 

The  Chairman:  I  want  to  say  on  behalf  of  that,  if  I  may 
talk  myself,  that  I  voted  against  the  last  proposition,  upon  the 
theory  that  I  perfectly  agree  that  this  limitation  ought  to  be 
three  thousand  dollars,  unless  there  is  some  premium  or  some- 
thing of  that  sort.  But  I  do  not  think  the  limit  ought  to  be  ten 
dollars  a  week  and  also  three  thousand  dollars.  If  it  would  reach 
three  hundred  weeks,  it  would  be  three  thousand  dollars.  But 
a  man  drawing  thirty  dollars  a  week  gets  only  ten  dollars,  that  is, 
a  third  of  his  wage,  and  I  do  not  believe  that  that  is  as  high  as  it 
ought  to  be.  I  think,  if  the  limit  were  fifty  per  cent,  and  then 
three  thousand  dollars,  that  the  limitation  of  three  hundred  weeks 
would  be  proper,  but  you  passed  on  that  question,  and  that  is 
the  only  reason  that  I  should  have  to  vote  against  this  motion 
as  it  is  put.  But,  having  limited  it  to  ten  dollars  a  week  irrespec- 
tive of  the  wage,  I  would  not  want  to  vote  for  this  question. 

Mr.  McEwen:  Now,  Mr.  President,  I  recognize  the  truth  of 
this  gentleman's  statement.  I  know  that  in  Minnesota,  if  a 
case  ever  goes  to  court  in  case  of  fatal  accident,  or  even  if  it  does 
not  go  to  court,  if  an  attorney  has  the  case,  the  most  the  de- 
pendants or  the  heirs  of  the  deceased  workman  who  met  his  death 
through  injury  can  get  out  of  it  is  two-thirds  of  five  thousand 
dollars:  the  lawyer  either  takes  one-third  as  his  contingent  fee 
or  too  frequently  one-half.  But  you  must  recognize  in  this  that 
only  a  very,  very  small  proportion  of  the  workingmen  will  be  able 
to  get  the  maximum  of  three  thousand  dollars.  I  am  satisfied 
that  there  are  sixty-seven  per  cent,  of  the  workingmen  in  our 
State  who  earn  two  dollars  a  day  and  less.  That  means  that 
with  most  of  the  men  who  are  injured  there,  the  maximum  amount 
they  can  get  for  three  hundred  weeks  at  six  dollars  a  week  would 
be  eighteen  hundred  dollars.  That  is  for  permanent  disability 
or  death.  Why,  you  take  the  wood-working  industry,  and  that 
includes  lumbering  also — I  have  returns  on  six  thousand  four 
hundred  and  eighty-eight  workmen  and  only  one  and  fifty-seven 
hundredths  per  cent,  get  four  dollars  a  day. 

Mr.  Gillette:  What  is  your  idea,  to  get  it  down  to  hard 
facts? 

Mr.  McEwen:  I  rather  like  the  position  of  the  gentleman 
from  Ohio,  a  maximum  of  five  thousand  dollars. 


118 

The  Chairman:  What  is  the  length  of  time, — three  hundred 
weeks  or  six  years? 

Mr.  McEwen  :  Ten  dollars  a  week  for  five  hundred  weeks. 

The  Chairman  :  That  is  practically  what  it  amounts  to. 

Mr.  McEwen:  The  other  would  be  five  hundred  weeks  at 
six  dollars  a  week,  that  is  three  thousand  dollars.  Now  let  us 
take  a  miner  earning  two  dollars  and  a  quarter  a  day.  Under  our 
statute,  if  he  meets  his  death  because  of  the  negligence  of  the 
company, — and  frequently  he  is  allowed  to-day  money  without 
apparent  negligence  on  the  part  of  the  company, — the  courts  have 
modified  the  rules  of  negligence  largely  in  a  great  many  of  the 
industrial  States  of  this  Union.  I  know  they  have  been  exceed- 
ingly liberal  in  our  State, — his  loss  is  considered  of  the  same  value 
as  the  engineer  earning  eighteen  hundred  dollars  or  two  thousand 
dollars.  Their  positions  in  the  courts  are  relatively  the  same, 
and  they  each  stand  an  equal  chance  of  obtaining  a  five-thou- 
sand-dollar verdict  or  a  five-thousand-dollar  settlement  out  of 
court. 

Now  I  believe  that  the  man  who  is  earning  two  dollars  a  day 
and  is  killed,  his  family  is  entitled  to  a  minimum  of  three  thoiv 
sand  dollars,  covering  a  period  of  ten  years.  The  danger  of  any 
large  number  of  men  obtaining  the  five  thousand  dollars  assessed 
in  this  way  is  remote,  or  it  is  at  the  minimum  at  least.  I  do  not 
think  you  have  anything  to  worry  about,  if  you  study  over  the 
situation  in  its  entirety,  making  a  complete  classification  of  the 
men  employed  in  any  shop  who  obtain  four  dollars  a  day  or  more, 
which  would  bring  them  under  the  ten-dollar  limit.  You  know 
that  won't  amount  to  such  a  serious  matter  as  you  think  it  will 
to-day,  and  we  are  really  taking  care  of  the  men  who  are  least 
able  to  take  care  of  themselves,  men  who  are  getting  two  dollars 
a  day  and  less.  They  need  protection  more  than  the  man  getting 
four  dollars  a  day,  because  he  carries  insurance.  I  belong  to  the 
plumbers'  union:  I  carry  insurance.  My  brother  here  belongs 
to  the  Brotherhood  of  Railroad  Trainmen:  he  can  obtain  in- 
surance to  the  amount  of  thirteen  hundred  and  fifty  dollars. 
Most  of  us  who  have  a  good  wage  carry  insurance.  We  do  not 
need  the  protection  so  much  as  these  poor  fellows  who  live  right 
up  to  every  dollar  they  earn.  I  have  wondered  how  they  live.  I 
think  that  two  dollars  and  a  half  a  day  is  a  minimum  living  wage 
in  our  part  of  the  country,  and  how  thej^  can  afford  to  put  any- 
thing aside  for  insurance  is  a  problem  with  me.     These  are  the  men 


119 

who  need  the  greater  protection  under  any  compensatory  act,  and 
therefore,  when  you  put  their  limit  at  twelve  hundred  dollars, 
you  are  putting  it  too  low,  and  they  are  the  men  who  are  entitled 
to  a  three-thousand-dollar  minimum. 

Mr.  Boyd:  What  per  cent,  of  yoiu"  accidents  over  any  given 
period  receive  compensation  of  any  kind  at  all  under  the  present 
method? 

Mr.  McEwen:  Well,  that  depends  entirely  upon  the  industry. 
I  rather  think  that  in  the  mines  of  Northern  Minnesota  ninety 
per  cent,  of  the  men  who  are  injured  get  something. 

Mr.  Boyd:  Take  the  average. 

Mr.  McEwen  :  Oh,  it  is  said  that  about  ten  per  cent,  get  any- 
thing. Now  the  insurance  companies  to-day  are  making  payments 
to  injured  workingmen,  nominal  payments  from  ten  dollars  up, 
to  close  up  a  case,  so  that  nothing  will  come  out  of  it,  and  get  a 
release.  The  Steel  Corporation  in  our  State  has  been  so  bothered 
with  ambulance-chasing  attorneys, — we  have  any  number  of  them 
there,  we  know  of  over  one  hundred  men  in  one  county  in  Minne- 
sota who  make  a  living  that  way, — when  an  accident  occurs  in 
the  mine,  it  is  a  question  who  will  get  there  first,  the  claim  agent 
of  the  company  or  the  representative  of  the  ambulance-chaser. 
The  man  who  gets  there  first  fixes  up  the  evidence.  As  a  result, 
the  claim  agents  of  the  Oliver  Mining  Company  will  pay  anything 
to  get  a  release.  We  have  a  report  from  the  Steel  Corporation 
in  the  matter,  and  I  have  talked  with  their  claim  department 
and  their  legal  department,  and  gone  up  to  the  mines  and  talked 
to  the  superintendents,  talked  to  the  men  themselves,  studied 
their  club  fund  features.  I  know  that  every  man  injured  in  the 
mines  gets  something.  It  may  be  ever  so  little.  In  the  other  in- 
dustries, however,  that  does  not  apply,  because  the  hazard  is 
less.  The  employers'  liability  agent  will  pay  something  rather 
than  to  have  this  thing  hang  on. 

Mr.  Gillette:  I  was  just  going  to  suggest  whether  it  wouldn't 
be  possible  to  work  out  of  this  a  proposition  based  on  the  theory 
of  the  French  law,  a  minimum  which  would  be  how  much  under 
this? 

Mr.  Saunders:  Fifteen  hundred  dollars. 

Mr.  Gillette:  A  minimum  of  fifteen  hundred  dollars  in  the 
case  of  a  man  who  was  killed  or  permanently  injured  who  has 
a  large  family  might  be  small,  but  suppose  that  could  be  modified 
on  the  basis  of  the  French  law,  and  that  is  by  that  I  mean  that 


120 

each  child  would  have  a  per  cent,  of  the  wage  rate, — if  there  was 
one  child  or  two  children,  thirty  per  cent.,  but,  if  there  were 
six  or  seven  children,  the  total  amount  should  not  exceed  the 
fifty  per  cent,  of  the  wage  rate.  By  that  way  it  would  take  care 
of  the  bad  cases  in  which  there  are  a  large  number  of  children 
with  possibly  a  low  wage  rate,  and  in  that  way  raise  the  minimum 
a  little  bit. 

The  Chairman:  Do  you  make  that  as  an  amendment? 

Mr.  Gillette:  No,  I  throw  that  out  to  think  about  a  little, 
as  to  whether  that  would  not  cover  the  cases  we  are  talking  about, 
and  in  that  way,  without  raising  the  maximum,  raise  the  minimum. 

Mr.  Lowell:  May  I  ask,  Mr.  Gillette,  whether  that  might 
not  tend — whether  an  unmarried  man  or  a  fairly  old  man  with 
only  one  child  would  not  be  likely  to  be  employed  rather  than 
the  young  fellow  who  has  two  children  and  liable  to  have  more? 

Mr.  Gillette:  That  has  not  had  that  effect  in  France. 

Mr.  Lowell:  Certainly,  the  birth-rate  is  lower  in  France 
than  in  any  other  country  in  the  world.  Perhaps  that  has  not 
had  anything  to  do  with  it. 

Mr.  Gillette:  The  birth-rate  is  the  highest  among  the  work- 
ingmen. 

A  Member:  It  has  not  had  that  effect  in  England,  either. 

Mr.  McEwen:  And  I  beg  leave  to  call  your  attention  to  an- 
other phase  of  this,  which  presents  a  very  serious  aspect  to  the 
injured  English  workman,  particularly  to  the  man  over  forty. 
I  do  not  wish  to  insist  upon  such  a  high  compensation  or  be  so 
exacting  in  a  law  that  it  will  discriminate  against  the  man  who 
becomes  less  alert  and  less  active.  In  England,  in  some  of  the 
industries,  they  are  weeding  out  the  men  who  are  slow,  the  men 
who  are  prematurely  old  or  who  are  old  because  of  years,  and 
are  looking  only  for  young  and  active  men.  The  accidents  are 
happening,  with  the  speeding  up  of  machinery,  more  frequently 
among  men  over  forty  than  they  are  among  those  under  forty. 

A  Member:  I  do  not  think  that  is  the  fact. 

Mr.  McEwen:  Well,  now,  I  will  ask  Mr.  Gillette  if  we  did 
not  get  that  information  there. 

Mr.  Gillette  :  Oh,  that  is  an  absolute  fact. 

A  Member:  I  went  to  the  trades-unions,  nearly  every  one  of 
them,  and  they  said  it  was  not  the  fact. 

Mr.  Gillette:  Mr.  Holmes,  secretary  of  the  Federation  of 
Hosiery  Workers,  told  us,  in  his  opinion,  there  were  a  hundred 


121 

and  fifty  thousand  English  workmen  who  could  not  get  employ- 
ment in  England  to-day  by  reason  of  excessive  age  or  some  partial 
disability.  In  Manchester  one  employee  whom, — I  just  cite  this 
instance  and  show  you  how  it  becomes  necessary, — in  Manchester 
there  was  an  employee  who  had  two  accidents  exactly  alike.  One 
of  them,  something  flew  and  hit  the  man  in  the  eye.  It  destroyed 
the  sight  in  that  eye.  He  received  compensation  for  eighteen 
weeks,  and  then  entirely  recovered.  A  short  time  after  he  had 
another  accident  of  the  identical  kind, — a  particle  of  something 
flew  in  the  man's  eye  and  put  it  out, — but  that  man,  when  he 
came  to  work,  only  had  one  eye,  and  consequently  that  man  had 
a  case  of  permanent  total  disability.  The  result  of  it  was  after 
that  they  did  not  dare  to  employ  any  more  one-eyed  men,  because 
it  multiplied  the  liability  to  so  great  an  extent.  Dr.  Dobic,  of 
London,  who,  I  think,  probably  was  the  most  interesting  man  I 
talked  with  in  England  (he  is  the  general  surgeon  for  the  Gen- 
eral Accident  Association  of  Perth),  told  me  of  a  case — I  have 
not  my  papers  here  or  else  I  would  give  you  the  concern — where 
an  English  concern  employing  four  thousand  men  subjected  all 
their  employees  to  a  physical  examination,  and  thirty-five  per 
cent,  of  them,  or  fourteen  hundred  people,  were  dropped  by  reason 
of  excessive  age  or  some  physical  imperfection.  The  English 
workman  has  not  become  alive  to  the  condition  of  facts  as  yet. 
Within  the  next  year  they  will  begin  to  appreciate  the  effect  of 
the  operation  of  that  law.  Now  the  London  County  Council 
are  subjecting  all  their  new  employees  to  a  physical  examination, 
and  the  result  of  that  is  they  are  showing  a  very  marked  decrease 
in  the  number  of  accidents  and  the  consequent  cost  of  them,  of 
compensation  adjustment,  and  with  their  physical  examination 
and  the  wage  qualification  they  have  reduced  their  cost  under 
the  Compensation  Act  to  a  very  marked  degree.  We  paid  quite 
a  little  attention  to  that,  Mr.  McEwen  and  I,  and  it  is  a  thing 
that  we  have  not  heard  mentioned  by  many  people,  and  the 
English  workmen  are  not  alive  to  it.  I  think  Mr.  McEwen  will 
agree  with  me  to-day  that  very  few, — some  of  their  leaders  are, 
but  the  general  body  of  the  English  workingmen  are  not  alive 
to  that  fact  yet,  and  within  the  next  few  years  it  is  going  to  be 
a  very  serious  question  in  England. 

Mr.  Wigmore:    It  does  not  appear  to  me  this  bears  on  the 
three-hundred-week  limit. 
•  Mr.  Doten:   May  I  just  say  a  word  in  confirmation  of  what 


122 

Mr.  Gillette  said?  Perhaps  the  members  of  the  Conference  are 
not  all  aware  that  a  bill  was  recently  introduced  into  Parliament 
to  permit  aged  and  partially  disabled  workmen  to  contract  out 
to  the  extent  of  receiving  less  than  the  stipulated  amounts  pro- 
vided for  by  the  act  as  it  now  exists.  That  bill  was  introduced 
into  Parliament  simply  to  meet  this  condition,  which  all  parties 
recognize. 

A  Member:  Here  is  a  statement  made  by  a  man  who  has  had 
thirty  years'  experience  with  railroad  employees.     He  says, — 

"I  feel  that  on  railways  aged  men  have  not  suffered."  The 
bill  that  was  introduced,  mentioned  by  the  last  speaker,  was 
fought  strenuously  by  the  workingmen,  who  are  in  the  business 
of  protecting,  and  it  was  their  action  in  committee  that  defeated 
any  amendment  on  that  position. 

The  Chairman:  I  found  quite  a  division  of  sentiment  over 
there  on  that  question. 

Mr.  Saunders:  It  is  reflected  here. 

Mr.  Bailey:  I  want  to  say  a  word  on  the  mine  proposition. 
This  is  going  to  be  an  initial  step  in  this  matter  in  the  United 
States,  and  the  insurance  people  here  and  everywhere  say:  "We 
don't  know  where  we  are.  We  are  afraid  of  this  thing,  because 
it  is  going  to  make  insurance  high,"  and  we  shall  do  the  cause  a 
serious  harm  unless  we  begin  with  some  moderation.  Having 
learned  to  walk,  we  can  then  run  a  little  and  do  what  the  gentle- 
men suggest  ought  to  be  done,  and  what  many  of  us  would  like 
to  see  done;  that  is,  get  it  up  higher,  if  we  can  stand  it.  But  let 
us  find  out  where  we  are.  The  insurance  people  say  that,  after 
this  is  going  for  a  year  or  two  years,  they  will  get  some  statistics 
on  which  they  can  estimate  rates  and  know  where  they  are.  So 
for  that  reason  I  am  going  to  vote  for  the  lower  limit,  hoping  that 
the  thing  will  so  work  that,  as  time  goes  on,  the  thing  may  be 
made  more  liberal. 

Mr.  Howard:  It  seems  to  me  that  Mr.  McEwen  a  few  minutes 
ago  made  a  pretty  good  argument  in  favor  of  limiting  the  amount 
of  weekly  compensation.  He  stated  that  the  man  who  needed  the 
protection  was  the  man  who  was  getting  two  dollars  a  day,  and 
that  the  man  who  was  getting  three  or  four  dollars  a  day  could 
afford  to  insure,  and  did  as  a  matter  of  fact  generally  insure,  and, 
if  you  give  fifty  per  cent,  compensation  without  any  limitation, 
it  takes  away  the  incentive  for  the  man  who  does  receive  enough 
pay  to  pay  additional  insurance  to  take  such  insurance,  and  it 


123 

really  seems  to  me  as  if  perhaps  the  members  could  get  together 
on  some  such  issue. 

The  Chairman:  I  simply  want  to  say  that,  when  we  get  to 
the  proper  point,  I  think  we  are  getting  as  many  constitutional 
difficulties  under  this  provision  as  we  shall  have  in  our  whole 
law,  and  perhaps  more.  We  may  have  to  revise  our  whole  notion 
of  this  thing.     Are  you  all  ready  for  the  question? 

Mr.  Gillette:  May  I  just  suggest  one  thing,  that  the  benevo- 
lent organizations  and  insurance  organizations, — that  within 
the  labor  organizations  themselves  all  recognize  exactly  the 
same  principle,  every  single  one  of  them  is  maintaining  these 
minimums  of  less  than  these  are, —  with  the  exception  of  one  rail- 
road organization,  I  think  every  single  one  of  them  are  for  less 
than  they  have  recommended  in  this  report? 

I  want  to  say  another  thing,  and  that  is,  I  wish  very  much, — I 
have  not  time  to  frame  it  now, — but  in  lieu  of  that  very  low  mini- 
mum we  could  incorporate  that  provision  of  the  French  law  which 
would  give  jBfteen  per  cent,  to  each  child  up  to  the  percentage  of 
wage  rate  which  is  agreed  upon. 

The  Chairman:  Now  are  you  ready  for  the  question?  Two 
gentlemen  from  Wisconsin  have  come  in  since  we  have  started. 

Mr.  Bailey  :  I  wanted  to  say  that  Mr.  Browne,  of  our  commit- 
tee, is  now  here  from  Washington,  and  so  we  have  three  of  our 
committee. 

The  Chairman  :  Mr.  Browne,  we  are  glad  to  see  you.  Now  all 
in  favor  of  the  question,  which,  as  I  understand,  shall  be  to  limit, — 
if  you  vote  in  the  affirmative,  it  shall  be  to  limit  the  compensation 
to  a  period  of  time  of  three  hundred  weeks. 

Mr.  McEwen:    Does  not  our  motion  take  precedence? 

The  Chairman:  I  guess  you  are  right  about  that.  You  move 
to  substitute  ten  years  for  that.  I  will  take  that  back.  All  in 
favor  of  substituting  ten  years  as  the  limit  of  time  that  the  com- 
pensation shall  continue  for  permanent  disability  make  it  known 
by  saying  aye. 

A  rising  vote  was  then  taken,  and  the  motion  lost  by  the  follow- 
ing vote:  ayes,  four;  noes,  eleven, — a  number  of  gentlemen  not 
voting. 

Mr.  Dickson:  May  I  record  the  reason  for  my  vote  on  the 
practicability  of  securing  legislation,  and  not  because  I  don't 
believe  in  the  inherent  justice  of  a  larger  amount? 

Mr.  Lowell:  The  same  here. 


124 

The  Chairman:  Frankly,  the  reason  I  voted  the  other  way 
was  that  I  believed  it  would  be  impossible  to  secure  a  law  that 
way. 

Mr.  Browne  :  To  have  a  uniform  law,  you  must  have  a  lower 
rate. 

Mr.  McEwen  :  I  thought  that  was  the  reason  why  we  are  here. 
The  idea  of  having  uniform  laws  was  to  be  able  to  mete  out  just 
a  little  more  justice  to  labor,  and  here  we  are  discussing  the  prob- 
lem as  if  we  represented  but  one  State. 

The  Chairman:  Don^t  let  us  argue  it,  Mr.  McEwen,  let  us 
explain  our  reasons. 

Mr.  Schutz:  I  object  to  having  my  reason  so  stated  by  Mr. 
McEwen.  I  claim  that  the  three-hundred-week  period  is  a  tre- 
mendous improvement  over  existing  conditions. 

The  Chairman:  That  is  your  reason  for  voting  for  it.  Now 
does  anybody  else  want  to  record  his  reason?  The  next  question 
is  on  the  five-dollar  minimum.  As  I  understand,  the  substitute 
is  that  we  now  recommend  a  minimum  of  five  dollars  a  week, 
irrespective  of  the  wage  the  person  is  getting  at  the  time.  Shall 
we  have  a  minimum  of  five  dollars  a  week? 

Mr.  Bailey:  I  assume,  in  case  of  adults,  not  to  exceed  their 
existing  wage. 

The  Chairman:  Then  do  I  understand  your  committee  has 
agreed  upon  the  minimum  of  five  dollars  a  week? 

Mr.  Saunders:  I  don't  know  whether  Mr.  Winans  agrees  to 
that. 

Mr.  Winans:  Yes,  I  agree. 

The  Chairman:  Then  this  is  a  unanimous  report.  I  would 
like  to  take  the  employer's  side  on  that  thing  now.  I  do  not 
think  that  minimum, — while  I  am  in  favor  of  a  minimum  of  five 
dollars  a  week,  it  ought  not  to  be  more  than  sixty-six  and  two- 
thirds  per  cent,  of  the  wages  the  person  is  earning  at  the  time. 
A  girl  working  for  five  dollars  a  week  is  going  to  malinger. 
Wherever  they  can  get  more  by  being  hurt  in  Europe,  that  is  by 
being  sick,  they  stay  out  as  long  as  they  can. 

Mr.  Gillette:  Would  the  words  "but  in  no  case  to  exceed 
sixty-six  and  two-thirds  per  cent,  of  the  wages"  fit  the  case? 

The  Chairman:  May  I  make  a  suggestion  there?  I  think,  up 
to  the  limit  you  put,  you  had  better  put  them  all  on  an  equality 
of  the  percentage  which  you  give  them.  You  can  put  it  sixty-six 
and  two-thirds  up  to  seven  dollars  a  week,  and  above  that  fifty 


125 

'per  cent,  of  the  ten  dollars.  It  is  hard  to  reckon.  It  puts  them 
all  on  an  equality.  The  other  way,  if  a  man  is  getting  thirteen 
dollars  a  week  and  another  man  getting  four  dollars  a  week,  you 
are  not  putting  them  on  the  same  basis  relatively,  and  you  must 
adopt  some  reasonable  classification  in  every  instance,  it  seems 
to  me.  Now  you  are  not  putting  it  on  a  percentage  of  the  basis 
as  it  is  standing,  and  your  limit  of  time  does  not  accord  with 
your  theory  here,  and  your  limit  of  amount  does  not  accord  with  it. 

Mr.  Wigmore:  How  would  you  phrase  it? 

The  Chairman:  I  would  simply  suggest  that  the  principle  be 
covered  that  we  give  sixty-six  and  two-thirds  per  cent,  of  all  the 
wages  up  to  seven  fifty  a  week,  which  would  be  five  dollars  a 
week,  if  you  had  seven  fifty,  and  above  seven  fifty  you  give 
fifty  per  cent,  up  to  ten  dollars. 

Mr.  Neill:  Would  not  a  man  earning  seven  dollars  get  more 
than  a  man  earning  eight  and  nine  dollars? 

The  Chairman:  No,  because  he  would  get  two-thirds  of  his 
seven  fifty,  and  above  that  he  would  get  half  of  it.  That  puts 
them  all  on  an  equality. 

The  question  was  called  for. 

Mr.  Gillette:  That  is  a  better  proposition. 

The  Chairman:  Will  somebody  move  that  as  an  amendment? 

Mr.  Saunders:  I  will  move  that. 

The  motion  was  seconded. 

The  Chairman  :  All  in  favor  of  that  as  amended — 

Mr.  Alexander:  Does  that  clear  away  our  previous  vote  on 
fifty  per  cent.,  if  you  put  it  that  way? 

The  Chairman:  My  notion  is  that  you  ought  to  limit  the 
whole  thing  that  way,  when  you  get  around  to  it. 

Mr.  Alexander:  Can  we  take  a  position  now  that  is  contrary 
to  all  the  votes  we  took  before? 

The  Chairman:  We  are  all  here.     If  nobody  objects  to  it. 

Mr.  Gillette  :  By  general  consent,  wipe  out  that  other  motion. 
We  want  to  get  along. 

The  Chairman:  All  in  favor  of  the  amendment  as  stated  by 
me,  let  it  be  known  by  saying  aye. 

The  motion  unanimously  prevailed. 

The  Chairman:  Now  all  in  favor  of  the  question  as  amended, 
let  it  be  known  by  saying  aye. 

The  motion  unanimously  prevailed. 

Mr.  Schutz  :  Can  that  be  stated  once  more? 


126 

The  Chairman:  The  minimum  is  sixty-six  and  two-thirds  per 
cent,  on  all  wages  up  to  seven  fifty,  on  the  first  seven  fifty.  Above 
seven  fifty,  fifty  per  cent,  of  the  excess,  until  you  reach  ten  dollars. 

Mr.  Saunders  :  There  is  one  other  question  which,  I  think,  Mr. 
Gillette  and  I  agreed  upon,  which  has  not  been  brought  up,  and 
that  is  in  regard  to  the  minors. 

Mr.  Neill:  Does  this  also  wipe  out  your  minimum  of  four 
dollars? 

The  Chairman:  Yes. 

Mr.  Saunders:  The  point  under  the  total  disability  of  the 
minor.  I  think  Mr.  Gillette  agrees  to  this, — if  he  does  not,  he  can 
so  state, — that  in  case  of  a  minor  that  is  totally  disabled,  after  he 
reaches  the  age  of  twenty-one,  his  compensation  shall  be  based 
upon  the  average  wage  of  a  man  working  in  that  line  of  work; 
that  is,  that  does  not  hold  the  minor  down  to  fifty  per  cent,  of 
what  he  was  earning  when  he  was  injured,  but,  when  he  reaches 
twenty-one,  it  places  him  on  the  basis  of  fifty  per  cent,  of  the 
average  wage  in  that  line  of  work. 

The  Chairman:  Do  you  understand  that  question,  gentlemen, 
as  stated?  That  recommendation?  I  want  to  know  if  there  is  a 
dissent  to  it.     I  understand  the  proposition  to  be  fifty — 

Mr.  Saunders:  In  case  of  a  minor,  his  compensation  shall  be 
based  upon  fifty  per  cent,  of  his  earning  capacity  at  the  time  of 
the  accident,  until  he  reaches  the  age  of  twenty-one,  and  then  it 
shall  be  increased  to  fifty  per  cent,  of  the  earning  capacity  of  the 
average  man  in  similar  employment. 

The  Chairman:  I  think  you  ought  to  have  that  percentage 
the  same  as  the  percentage  under  the  other  that  we  just  last 
passed,  up  to  twenty-one,  and  increase  it  as  you  have  indicated. 

Mr.  Saunders:  I  will  agree  to  that. 

A  Member:  It  seems  to  me  there  is  one  point  left  out  in 
this  other  matter;  that  is,  you  take  sixty-six  and  two-thirds  per 
cent,  up  to  seven  dollars  and  a  half  and  fifty  per  cent,  of  the 
balance  up  to  ten  dollars,  and  you  only  have  there  a  proposition 
for  a  maximum  of  seven  dollars  and  a  half. 

The  Chairman:  No,  no,  until  the  fifty  per  cent,  makes  it  up 
to  ten  dollars. 

A  Member:  That  was  not  the  way  it  was  stated. 

The  Chairman  :  That  there  is  to  be  fifty  per  cent,  of  the  excess 
above  seven  dollars  and  a  half  until  you  reach  ten  dollars.  Now 
are  you  agreed  that  the  same  percentages  shall  be  allowed  the 


127 

minor  until  he  reaches  his  majority,  then  that  the  classification 
be  raised  to  accord  with  the  employment  of  similar  persons  in 
the  same  trade,  earning  full  pay?  If  so,  are  you  ready  for  the 
question? 

Mr.  Doten:  Why  cannot  that  be  left  as  it  is?  Because  these 
minors  would  naturally  come  under  this  low -wage  group,  and 
simply  make  the  recommendation  that,  when  they  reach  their 
majority,  the  wage  on  which  their  compensation  shall  be  based 
shall  be  that  of  adults  in  that  employment.  Then  you  won't 
have  to  state  over  again  that  you  are  allowing  the  sixty-six  and 
two-thirds  per  cent.,  because  that  would  apply  in  any  case. 

The  Chairman:  I  think  you  are  right  about  that  in  principle 
when  you  come  to  draw  your  law. 

Mr.  McEwen  :  I  have  a  modified  view  on  that  which  I  would 
like  to  express.  I  think  probably  it  will  be  generally  agreed  to. 
This  might  be  construed  to  mean  the  same  thing,  although  I  do 
not  interpret  it  so.  Of  course  there  has  got  to  be  some  machinery, 
some  institution  to  raise  this  from  time  to  time.  We  cannot 
leave  that  to  the  insurance  companies.  It  has  got  to  be  left  to 
the  court.  I  believe  that  ought  to  be  graduated.  If  the  boy 
was  an  able-bodied  boy,  and  suffered  permanent  disability,  he 
ought  to  enjoy  increased  compensation,  just  as  he  would  have 
enjoyed  increased  wages  with  his  experience  in  a  shop  or  a  fac- 
tory until  it  reaches  his  maximum. 

The  Chairman:  That  is,  you  mean,  if  he  had  gone  ahead  in 
the  regular  channel,  he  would  have  been  out  of  his  apprentice- 
ship instead  of  the  ordinary  limit  of  twenty-one? 

Mr.  McEwen:  Yes,  we  don't  have  the  apprenticeship  to-day 
that  we  used  to  have.  Machinery  has  specialized  the  trades, 
and  all  it  is  necessary  for  a  boy  to  do  now  is  to  serve  a  couple  of 
years  to  become  a  tradesman.  If  he  goes  to  work  at  the  age 
of  sixteen,  at  the  age  of  eighteen  or  nineteen  he  is  a  full-fledged 
mechanic,  and  I  want  his  compensation  to  increase  just  as  his 
wage  increases  or  would  increase,  were  he  able-bodied  and  work- 
ing.    I  think  that  it  is  only  fair. 

Mr.  Doten:  Mr.  Chairman,  cannot  we  bring  that  in  in  some 
way  under  our  definition  of  average  wages,  what  average  means? 
We  are  basing  all  this  upon  average  wages,  and  we  should  say  that 
average  wages  are  what  the  workman  was  obtaining  previous 
to  the  time  of  his  injury,  except  that  in  the  case  of  minors  it  will 
be  adjusted,  as  Mr.  McEwen  has  said. 


128 

The  Chairman:  I  should  like  to  submit  to  our  friend  Judge 
Holloway,  and  agree  that  he  may  feel  otherwise  if  the  case  ever 
comes  before  him,  the  case  as  to  whether  or  not  it  would  be  a 
more  reasonable  classification  if  we  put  in  Mr.  McEwen's  sug- 
gestion than  the  arbitrary  wage  of  maturity;  that  is,  if  it  would 
not  be  better  to  say  that  the  wage  should  change  at  the  time  the 
man  would  have  gone  out  of  his  apprenticeship  rather  than  at  his 
majority?  It  might  be  twenty,  it  might  be  nineteen,  it  might  be 
twenty-three. 

A  Member:  There  may  be  no  question  of  apprenticeship 
involved  at  all. 

Mr.  Alexander:  You  would  have  to  define  apprenticeship, 
because  there  is  such  a  difference  of  conditions  of  apprentice- 
ships. 

Mr.  Rohr:  I  might  cite  one  case  that  came  under  my  personal 
observation  a  day  or  two  before  I  left  Cincinnati,  where  a  man 
started  in  at  sixteen,  and  where  he  worked  the  first  year  for 
seven  dollars,  the  second  year  nine-eighty-six,  the  third  year 
fourteen  eighty,  the  fourth  year  eighteen  ninety,  and  on  the 
expiration  of  four  years  he  gets  twenty-eight  dollars  a  week. 
That,  I  believe,  will  illustrate  the  point  that  Mr.  McEwen 
wants  to  make. 

The  Chairman  :  What  line  of  business? 

Mr.  Rohr:    The  printing  business,  by  the  way. 

Judge  Holloway:  In  my  judgment  it  is  going  to  become 
necessary  for  us  to  adopt  definitions  of  a  great  many  of  these 
terms,  if  we  ever  expect  to  have  uniformity  in  the  construction 
of  these  laws,  and  in  my  judgment  the  suggestion  of  Mr.  Doten 
covers  this  entirely. 

The  Chairman:  Then  are  you  ready  for  the  question,  first  on 
the  amendment  suggested  by  Mr.  Doten,  that  we  simply  treat 
this  matter  of  the  minor  as  an  exception  to  the  general  rule  of  the 
percentages,  and  after  he  becomes  twenty-one — 

Mr.  Doten  :  It  is  no  exception  to  our  rule  of  percentages,  is  it? 
It  is  only  an  exception  to  the  definition  of  average  wages. 

Mr.  Lowell:  It  is  no  exception  to  this  clause  at  all,  in  other 
words. 

The  Chairman:  No,  but  you  just  add  it  as  a  modification  of 
the  other. 

Mr.  Doten:  Yes. 

The  question  was  then  put,  and  the  motion  prevailed. 


129 

The  Chairman:  I  assume  you  vote  the  same  on  the  original 
question.     There  does  not  seem  to  be  any  division. 

Mr.  Winans:  I  move  the  adoption  of  the  minority  report: 
"Payment  of  total  disabihty  and  death  to  be  made  sixty  per  cent, 
of  the  earnings  for  a  period  of  ten  years;  with  a  maximum  allow- 
ance of  six  thousand  dollars  and  a  minimum  of  thirty-six  hun- 
dred dollars." 

The  Chairman:  Suppose  a  man  was  drawing  a  wage  where 
sixty  per  cent,  of  the  wage  would  not  amount  to  thirty-six  hun- 
dred dollars.  That  might  be  possible  in  a  good  many  places  in 
the  United  States,  where  sixty  per  cent,  of  the  wage  would  not 
amount  to  that;  that  is,  fifty  dollars  a  month.  There  are  a  good 
many  wage-earners  where  with  board  even  it  would  not  amount 
to  that. 

Mr.  Winans:  I  took  that  on  the  basis  of  six  hundred  dollars 
a  year. 

Mr.  Neill:  What  is  the  proposition? 

The  Chairman:  The  question  now,  as  I  understand,  is  whether 
or  not  you  shall  put  a  minimum  limit  for  death  at  thirty-six  hun- 
dred dollars  and  maximmn  five  thousand  dollars.  I  suppose 
that  means  sixty  per  cent.  Suppose  a  man  dies  at  the  end  of  two 
or  three  years,  what  are  you  going  to  do? 

Mr.  Winans  :  Why,  Mr.  Chairman  and  gentlemen,  as  I  under- 
stand it,  our  action  yesterday  left  it  open  for  this  to  be  paid  either 
in  a  lump  sum  or  in  an  instalment,  and  I  understand  in  case  of 
payment  of  total  disablement  and  death  that  he  is  going  to  get 
this  sum. 

The  Chairman  :  I  didn^t  understand  we  left  the  lump  sum  open, 
except  in  the  discretion  of  the  court  on  a  proper  showing. 

All  right,  we  will  put  this  question  as  it  is.  All  in  favor  of  the 
motion,  let  it  be  known  by  saying  aye.  All  opposed,  let  it  be 
known  by  saying  no. 

The  motion  was  lost. 

Mr.  Neill:  In  regard  to  the  question  of  the  lowness  of  this 
average.  I  think  we  are  making  this  mistake  in  this  discussion: 
we  are  assuming  that  you  can  put  a  man  and  his  family  back  in 
the  position  after  the  accident  in  which  he  was  before.  We  cannot 
do  that,  and  it  is  no  use  trying.  The  average  man  to-day,  even 
if  he  has  pretty  good  earnings,  does  not  carry  three  thousand 
dollars  life  insurance.  We  have  got  to  assume  that,  if  accidents 
are  going  to  happen  and,  if  families  are  going  to  be  left  in  more  or 


130 

less  disaster  or  distress,  all  we  can  do  is  to  relieve  some  part  of 
that.  We  cannot  reconstruct  the  whole  scheme  of  things, — try 
to  keep  every  family  as  they  were  before  the  misfortune.  All 
we  can  consider  is  to  in  some  way  minimize  that  distress  and 
leave  them  in  some  kind  of  fair  condition.  It  seems  to  me  that 
we  might  consider  this,  for  example.  We  are  making  a  hard-and- 
fast  rule  to  pay  certain  amounts  to  families,  the  idea  being  to 
help  the  situation.  There  is  a  very  great  difference  between  a 
family  left  with  four  or  five  children,  all  under  seven  years  old, 
and  one  with  the  oldest  boy  sixteen  and  no  children  under  twelve. 
Could  we  not  adopt  some  rule  whereby,  if  you  have  a  high  maxi- 
mum, that  high  maximum  should  not  apply  in  case  where  de- 
pendency was  sure  to  end  soon  or  where  there  were  few  children? 
We  have  to  assume  this  normally,  that  in  the  course  of  time  the 
parents  would  be  taken  care  of  by  the  children,  and  a  woman 
left  with  five  children,  the  eldest  of  them  seven  years  old,  should 
be  better  taken  care  of  than  a  woman  with  several  children  the 
eldest  sixteen.  We  assume  here  as  a  practical  proposition  that 
all  we  can  do  is  to  remove  some  of  the  extreme  hardships.  We 
cannot  remove  all  the  hardship  that  is  going  to  take  place  in  case 
of  death. 

Mr.  McEwen:  My  theory  of  this  whole  matter  has  been 
that  the  compensation  in  case  of  fatal  accidents  should  only  be 
paid  to  the  dependants  during  the  time  of  their  dependency.  I 
coincide  entirely  with  the  opinions  expressed  by  Commissioner 
Neill  on  that. 

Mr.  Gillette:  I  am  pretty  well  in  sympathy  with  what  Mr. 
Neill  has  said. 

The  Chairman  :  I  beUeve  there  is  no  question  before  the  house, 
but  I  don^t  want  to  be  technical  about  it. 

Mr.  Gillette:  It  is  in  line  with  just  what  has  been  suggested, 
and  that  is  that  the  provision  of  the  French  law, — and  the  French 
law,  by  the  way,  I  do  not  believe  any  of  us  have  paid  half  as  much 
attention  to  that  as  we  ought  to, — as  a  matter  of  fact,  with  the 
exception  of  the  doctor  question,  we  found  less  complaint  among 
the  French  people  than  almost  anywhere. 

Mr.  McEwen:  You  did  among  the  insurance  people.  Among 
the  laborers  I  found  they  thought  the  compensations  were  ex- 
ceedingly low. 

The  Chairman:  Let  me  interrupt  you  a  moment.  I  find, 
Mr.  Gillette,  you  have  a  clause  in  this  report  that  you  and  Mr. 


131 

Saunders  made  that  on  a  proper  motion  to  bring  up  will  raise 
that  very  question, — on  partial  dependency. 

Mr.  Gillette:  That  is  not  just  exactly  what  I  am  trying  to 
bring  up.  Just  let  me  read  this  one  clause  from  the  French  law. 
I  will  read  it  just  as  I  have  it: — 

''In  case  death  follows  accident,  compensation  is  paid  under 
the  following  conditions: — 

"  (1)  The  surviving  widow  or  widower  receives  an  annuity  equal 
to  twenty  per  cent,  of  the  annual  wages  of  the  deceased  victim, 
provided  he  or  she  was  neither  divorced  nor  otherwise  legally 
separated  from  the  deceased.  This  annuity  continues  during 
life  or  until  the  beneficiary  remarries.  In  case  of  remarriage  a 
final  lump-sum  payment  equal  to  three  times  the  annuity  is 
made. 

''(2)  The  children  of  the  deceased  victim  who  are  under  six- 
teen years  of  age,  including  illegitimate  children  recognized  bj'' 
the  victim  before  the  accident,  receive:  (a)  in  case  one  parent 
survives,  an  allowance  equal  to  fifteen  per  cent,  of  the  annual 
wages  of  the  deceased  if  there  is  but  one  such  child,  twenty-five 
per  cent,  if  there  are  two,  thirty-five  per  cent,  if  there  are  three, 
and  forty  per  cent,  if  there  are  more  than  three  such  surviving 
children;  (6)  in  case  both  parents  are  dead,  an  annual  allowance 
equal  to  twenty  per  cent,  of  the  annual  wages  of  the  deceased 
victim  for  each  child,  provided  that  all  the  surviving  children 
shall  not  receive  more  than  sixty  per  cent,  between  them. 

"(3)  Each  ascendant  and  each  descendant  under  sixteen  years 
of  age  who  was  dependent  upon  the  victim  at  the  time  of  his  death, 
if  no  wife  or  husband  and  no  children  survive,  receives  an  allow- 
ance equal  to  ten  per  cent,  of  the  annual  wages  of  the  deceased, 
the  total  in  no  case  to  exceed  thirty  per  cent,  of  such  wages." 

If  the  annual  wages  of  the  deceased  exceeded  twenty-four 
hundred  francs  ($463.20),  of  the  excess  over  that  amount  only 
one-fourth  is  considered  in  computing  the  above  pensions. 

Mr.  Doten:  If  there  is  no  motion  before  the  committee,  I 
move  you  to  recommit  this  section  to  the  committee  for  report 
after  lunch,  and  I  do  it  for  this  reason,  that  there  is  no  provision 
in  their  report  in  regard  to  the  definition  of  average  wages  that  we 
have  already  suggested  here,  that  that  should  contain  the  question 
of  minors,  and  should  contain  the  further  question  of  what 
should  be  done  in  case  wages  are  paid  in  part,  in  kind,  or  in  board, 


132 

or  so  on.  There  is  quite  a  bit  of  detail  in  connection  with  that 
question,  which  is  the  basis  of  our  whole  compensation  scheme. 

The  motion  was  seconded. 

The  Chairman:  You  have  heard  the  motion  which  is  made 
and  seconded  to  recommit. 

Mr.  Gillette:  Recommit  what  matters? 

The  Chairman:  The  matters  stated  by  Mr.  Doten  to  this 
committee  for  report  at  two  o'clock.  Now  will  you  read  what 
the  motion  was? 

Mr.  Saunders:  I  hope  this  won't  be  done.  The  matters  Mr. 
Doten  suggested  are  all  matters  of  detail  which  each  Commission 
has  to  thresh  out  for  itself  when  they  draft  the  law.  This  com- 
mittee's report  is  only  a  majority  report,  anyway,  and  I  don't  be- 
lieve we  could  get  any  further  if  we  threshed  it  over  through  the 
lunch  hour. 

Mr.  Doten:  I  hate  to  differ  with  a  member  of  my  Commission, 
but  it  seems  to  me  we  ought  to  have  somewhere  in  the  report  of 
this  meeting  a  definite  decision  on  this  question  of  minors.  We 
have  not  put  it  in  yet. 

Mr.  Saunders:  We  have  it  in  the  record. 

The  Chairman:  Let  me  make  this  suggestion,  Mr.  Doten. 
I  have  had  in  mind  all  the  time  that,  if  we  could  agree  here  sub- 
stantially on  the  different  principles  that  are  to  be  covered  by 
these  laws  and  upon  the  general  theory  of  the  law,  we  can  then 
appoint  a  committee,  consisting  of  some  of  those  outside  lawyers 
like  Judge  Sanborn  and  Judge  Holloway  and  Mr.  Wigmore,  to 
get  together  and  draft  a  law  which  they  will  recommend  to  all 
the  Commissions,  and  do  it  within  the  next  two  weeks  or  ten  days 
after  they  get  this  report,  and  I  think  that  will  eliminate  a  lot  of 
these  details.  Now  that  is  not  before  the  Commission  now.  I 
simply  make  that  as  a  suggestion. 

Mr.  Doten:  There  are  a  number  of  questions  here  which  we 
ought  to  have  the  combined  wisdom  of  the  members  present  on. 
One  question,  for  instance,  is  the  seasonal  occupations,  how  they 
shall  be  treated  on  the  question  of  determining  the  average  wage. 
There  are  a  number  of  very  important  questions  in  connection 
with  this  particular  one  of  average  wage  which,  it  seems  to  me, 
might  well  be  considered  at  this  meeting. 

The  Chairman:  That  has  been  voted  upon.  I  shall  have  to 
rule,  I  think,  in  the  question  before. 

Mr.  Rohr:  My  understanding  was  that  it  was  the  average 


133 

wage  for  duration  of  employment.  If  he  was  employed  for  eight 
months,  it  would  be  his  average  wage  for  eight  months. 

The  Chairman:  All  in  favor  of  the  motion  let  it  be  known  by 
saying  aye. 

The  motion  was  lost. 

Mr.  Gillette  :  We  have  taken  no  action,  then,  on  the  question 
of  permanent  total  disability  and  death  limit. 

Mr.  Saunders:  We  have  acted  on  permanent  total  disability. 
Now  we  come  up  to  the  death: — 

''In  case  of  death  resulting  from  the  injury,  the  employer  shall 
pay  the  dependants  of  the  employee,  wholly  dependent  on  his 
earnings  for  their  support  at  the  time  of  the  accident,  one-half 
of  the  average  weekly  wages  of  the  deceased,  but  not  more  than 
ten  dollars  nor  less  than  five  dollars  a  week,  for  a  period  of  three 
hundred  weeks  from  the  date  of  the  accident,  together  with  the 
cost  of  medical  attendance  and  funeral  expenses  not  exceeding 
one  hundred  dollars." 

Then  we  follow  after  with  partially  dependent. 

The  Chairman:  I  suppose  we  had  better  take  up  the  first 
section.  Will  you  state  the  principle  in  plain  English  as  to  what 
you  want  to  cover? 

Mr.  Saunders:  The  wholly  dependent  is  based  upon  fifty 
per  cent,  of  the  earning  wages,  with  not  more  than  ten  dollars 
a  week  nor  less  than  five  dollars  a  week  for  a  period  of  three  hun- 
dred weeks.  Practically  the  same  as  we  have  decided  on  the  total 
disability. 

The  Chairman:  I  suppose  you  have  a  qualification  in  there  of 
sixty-six  and  two-thirds. 

Mr.  Saunders:  Yes,  I  think  Mr.  Gillette  and  I  would  accept 
that.     It  would  be  exactly  the  same  as  the  total  disability. 

Mr.  Neill  :  Is  that  payment  for  death? 

Mr.  Saunders:  Yes. 

Mr.  Neill:  Read  that  again,  please. 

Mr.  Saunders:  Just  what  we  voted  for  the  total  disabiUty, 
sixty-six  and  two-thirds  per  cent,  on  the  first  seven  fifty  and  fifty 
per  cent,  on  the  balance  of  wage,  not  exceeding  ten  dollars  a  week 
for  three  hundred  weeks. 

Mr.  Gillette:  Now,  Mr.  Chairman,  I  want  to  add  what  they 
added  before.  On  thinking  the  matter  over,  it  is  most  unscien- 
tific and  it  is  most  unfair.  What  I  mean  by  it  is  this.  Now 
first,  just  to  illustrate,  I  don't  know  how  it  would  figure  out  as  a 


134 

matter  of  mathematical  computation,  but  I  will  say  this,  that  you 
could  probably  add  one  year  to  the  total  length  of  time  for  which 
you  would  pay  fifty  per  cent,  of  wages  by  limiting  it  as  in  the 
French  law, — if  there  is  only  one  child,  you  pay  so  much,  two  chil- 
dren so  much,  and  three  or  four  children  so  much,  up  to  that 
percentage.  In  other  words,  you  can  take  that  money  away  from 
the  family  where  there  is  only  one  child  left  and  add  it  on  to  the 
length  of  time  where  you  are  going  to  pay  compensation  in  case  of 
death  or  total  disability  without  costing  any  more  money,  and  it 
does  the  family  infinitely  more  good. 

The  Chairman:  Are  you  ready  for  the  question?  All  in 
favor  make  it  known  by  saying  aye. 

The  motion  was  lost. 

Mr.  Gillette:  I  am  going  to  vote  against  that,  as  it  is  drawn, 
because  I  don^t  think  it  is  quite  right. 

The  Chairman:  Mr.  Gillette  dissents  from  his  own  report. 
I  think  he  is  entitled  to  do  that. 

Mr.  Gillette:  I  do  because  I  want  to  see  the  best  use  made 
of  the  money. 

The  Chairman:  The  minority  report  has  been  defeated  and 
the  majority  report  taken  back  and  partially  defeated,  as  I  view 
it.     Now  what  will  you  have  on  the  question? 

Mr.  Smith:  I  move  the  whole  matter  be  referred  back  to  the 
committee. 

The  Chairman:  To  determine  the  amount  for  death? 

Mr.  Smith:  Yes. 

The  Chairman  :  Do  you  want  to  refer  back  to  that  unfinished 
part? 

Mr.  McEwen:  Mr.  Chairman,  there  are  a  lot  of  new  views 
which  have  been  advanced  since  we  acted  upon  that,  and  pos- 
sibly there  has  been  a  way  opened  by  which  we  can  all  get 
together  on  the  question  of  permanent  disability  and  death. 

Mr.  Bailey:  Permanent  disability  and  death.  That  is  the 
only  question  left  unsettled. 

Mr.  Boyle:  I  wish  to  call  attention  to  the  fact  we  have  not 
said  a  word  about  medical  attendance. 

The  Chairman:  That  comes  in  under  another  part  of  the 
report. 

Mr.  Bailey:  It  is  right  in  the  thing  that  was  read,  and  we 
voted  on  it. 

The  Chairman  :  We  are  taking  it  up  by  sections. 


135 

Mr.  Bailey:  I  didn't  want  that  referred  back  again  without 
saying  something  on  it. 

The  Chairman:  A  suggestion  has  been  made  that  we  refer  to 
the  committee  the  permanent  disability  and  death,  also  to  report 
back  and  see  if  they  cannot  agree  on  it  by  two  o'clock. 

The  Chairman  :  All  in  favor  of  that  motion  will  say  aye. 

The  motion  prevailed. 

The  Chairman:  Gentlemen,  take  it  and  let  us  hear  from  you. 

A  Member:  We  have  not  touched  on  the  medical  question. 
It  has  not  been  referred  to  the  committee.  There  are  only  two 
questions  before  the  committee.  Certainty  in  defining  liability, 
we  have  got  rid  of  that.  Now  certainty  in  defining  disability, 
that  is  just  as  important. 

The  Chairman  :  The  committee  still  has  in  its  report  the  ques- 
tion as  to  what  shall  be  done  in  case  of  death  for  hospital  bills  and 
doctor  bills,  but  we  have  not  taken  that  up  yet.  We  will  take  it 
up  now.     Read  your  provision,  Mr.  Saunders. 

Mr.  Saunders:  There  is  added  to  this,  in  case  of  death  the 
maximum,  ''together  with  the  costs  of  medical  attendance  and 
funeral  expenses,  not  exceeding  one  hundred  dollars." 

The  Chairman  :  Are  you  ready  for  that  question? 

Mr.  Bailey:  His  motion  is  that  that  be  adopted. 

The  Chairman:  Treat  it  as  so. 

Mr.  Bailey:  I  want  to  inquire  whether  that  is  meant  to  be 
continued  absolutely  in  case  of  death  or  whether  we  are  talking 
now  about  some  medical  attendance  during  the  two  weeks  of 
first  injury.     I  assume  now  you  are  talking  about  the  last  sickness. 

The  Chairman:  The  motion  does  not  limit  it  to  the  last  sick- 
ness, as  I  understand  it. 

Mr.  Saunders:  The  motion  limits  it  to  cases  of  death  because 
your  committee  did  not  have  before  it  the  question  of  temporary 
disability.  Therefore,  they  did  not  feel  like  dealing  with  the 
doctor  question  on  either  temporary  or  total  disability,  but  we 
did  have  a  death  proposition  before  us,  and  dealt  with  it  there. 

A  Member:  When  do  we  discuss  the  medical  question? 

The  Chairman:  The  medical  question  has  a  good  many  dif- 
ferent phases.  It  is  the  question  now  for  medical  attendance 
and  hospital  bills  for  the  last  sickness,  what  will  you  do  with  it? 

A  Member:  I  move  we  discuss  it  as  a  whole  without  limiting  it. 

The  motion  was  seconded. 

Mr.  Saunders:  As  a  substitute  then,  if  I  can  substitute  some- 


136 

thing  for  my  previous  motion,  I  move  you  that  in  every  case  the 
employer  shall  provide  medical  attendance  for  his  injured  employ- 
ees not  to  exceed  one  hundred  dollars. 

The  Chairman:  Then  you  accept  it  as  an  amendment  for  the 
motion.    Are  you  all  ready  to  vote  on  that  question? 

Mr.  Bailey:  That  question,  I  understand,  involves  the  merits 
of  the  medical  question. 

The  Chairman:  Not  the  selection  of  the  doctors,  but  the 
cost  question. 

Mr.  Bailey:  It  has  been  suggested  in  England,  in  this  paper 
of  Mr.  Hill's  that  was  read  in  August,  that  the  English  act  was 
defective  because  it  did  nothing  to  cure  the  workman,  simply 
provided  for  dependence  and  the  family,  and  gave  him  some 
money,  but  it  did  not  do  anything  to  hasten  his  recovery  nor 
get  him  back  to  work,  and  that  was  a  defect  in  the  English  law. 
That  rather  appealed  to  me  as  sound,  and  I  understand  we  are 
now  talking  about  something  to  cure  that  defect,  and  the  idea 
is  that  the  workman  shall  be  encouraged.  He  is  encouraged  in 
various  ways,  of  course,  we  know,  to  get  first  aid.  Take  a  place 
like  the  one  at  Beverly.  The  United  States  Shoe  Machinery  Com- 
pany have  a  plant,  and  I  presume  it  is  true  in  other  large  places, 
where  there  is  medical  attendance  furnished  by  the  employer 
free.  When  a  man  gets  his  hand  hurt,  he  goes  in  and  gets  good 
treatment  for  it.  This  is  somewhat  similar  that  we  should  do, 
something  not  only  to  relieve  the  distress,  but  make  the  dis- 
tress as  small  as  possible.  I  beUeve  it  should  be  done.  As  to  a 
limit,  I  think  you  must  have  a  Umit,  but  I  think  we  should  do 
something,  if  we  can,  in  that  direction. 

Mr.  Chaney:  I  am  very  much  interested  in  this  question  of 
medical  attendance.  I  have  been  over  probably  five  hundred 
different  plants  engaged  in  manufacturing  in  the  last  three  years, 
and  have  taken  a  special  note  of  the  provisions  which  are  made 
with  reference  to  the  care  of  the  injured  employee,  and  it  appeals 
to  me  very  strongly  that,  in  framing  these  compensation  acts, 
the  existing  situation  should  be  taken  account  of  and  made  the 
most  of.  Here  is  already  a  very  large  provision  for  the  benefit 
of  the  injured  workman,  and  to  draw  your  laws  without  taking 
those  into  account  and  making  the  most  of  them  would  be  very 
likely  to  discourage  that  phase  of  the  compensation  movement, 
so  that,  when  these  laws  are  being  framed,  facts  with  regard  to 
what  employers  are  already  doing  ought  to  be  taken  into  account, 


137 

and  ought  to  be,  it  seems  to  me,  incorporated  in  the  law  itself. 
I  simply  speak  of  this  to  emphasize  the  fact  that  we  have  already 
in  operation  a  very  important  compensation  scheme  in  this  matter 
of  medical  attendance,  and  it  does  seem  that  it  ought  to  be  worked 
into  the  law  in  such  a  way  that  the  thing  that  is  now  being  done 
will  articulate  harmoniously  with  what  you  propose  to  do  further. 

Judge  Hollo  way:  Mr.  Chairman,  it  seems  to  me,  as  I  said 
yesterday  two  or  three  times,  that  the  utmost  we  can  hope  to  do 
here  is  to  adopt  principles,  and,  as  the  chairman  suggested,  some 
time  or  other  either  each  separate  Commission  or  the  body  as  a 
whole  will  have  to  submit  to  a  smaller  body  the  drafting  of  a 
proposed  measure.  Now,  in  harmony  with  what  Mr.  Chaney 
has  just  said,  the  respective  Commissions  or  a  representative  body 
of  this  Commission  would  take  into  consideration  any  existing 
law,  then  try  to  harmonize  the  measures  we  are  to  propose  to  our 
respective  State  Legislatures.  Now,  if  we  can  adopt  the  principle 
that  the  employer  shall  compensate  his  injured  employee,  in 
addition  to  the  provisions  we  have  already  made  for  furnishing 
free  medical  and  hospital  attendance  and  funeral  expenses  in 
case  of  death,  it  seems  to  me  that  is  all  we  ought  to  attempt  to 
do  this  morning  without  going  into  the  details.  In  my  judgment 
that  is  the  most  important  feature  of  this  work.  If  there  is  any 
time  on  earth  when  the  injured  employee  needs  help,  it  is  right 
at  that  time.  If  he  is  badly  injured,  he  must  go  to  the  hospital. 
He  cannot  afford  to  do  it.  The  average  employee  does  not  have 
the  funds  to  pay  the  hospital  fees.  If  we  cannot  make  this  a 
charge  upon  and  a  risk  of  the  business,  then  we  might,  in  my 
judgment,  as  well  disband.  Now  I  suggest,  and,  if  it  is  neces- 
sary to  get  the  matter  before  the  house,  I  will  move  you  that  we 
adopt  the  principle  that  the  employer  shall  furnish  free  medical 
and  hospital  attendance  and  funeral  expenses  in  case  of  death. 
The  limit  will  have  to  be  worked  out. 

The  Chairman:  That  is  covered  by  the  previous  motion,  that 
in  every  case  the  employer  shall  provide  medical  attendance  for 
his  injured  employee  with  the  limit  left  out. 

Mr.  Boyd:  I  move  to  amend  that  by  saying  "during  dis- 
ability." 

The  Chairman:  I  suppose  you  all  accept  that  amendment, 
wouldn't  you? 

Mr.  Gillette:  No. 


138 

The  Chairman:  All  right.   Is  it  seconded? 

The  motion  was  seconded. 

Mr.  Gillette:  Let  me  call  attention  to  the  distinction.  One 
place  there  is  no  limit  upon  the  cost  of  medical  and  surgical  at- 
tendance. That  must  be  limited.  I  think  what  we  ought  to  do 
is  to  carry  medical  and  surgical  and  hospital  attendance  to  an 
amount  not  to  exceed  one  hundred  dollars,  and  in  case  of  death 
to  an  additional  hundred  dollars  for  funeral  expenses. 

The  Chairman:  Do  I  understand  you  are  moving  that  second 
amendment? 

Mr.  Gillette:  Yes,  I  am  going  to  move  that  amendment, 
and  that  is  that  the  employer  be  obliged  to  furnish  free  hospital 
and  medical  aid  to  an  amount  not  exceeding  one  hundred  dollars, 
and  in  case  of  death  an  additional  one  hundred  dollars  for  funeral 
expenses. 

Mr.  Gillette:  If  the  death  is  instantaneous,  there  would  be 
no  doctor. 

The  Chairman  :  Before  we  get  too  many  amendments,  I  don't 
think  there  is  anybody  in  this  room  ready  to  make  a  motion,  and 
put  it  in  form  on  this  question  of  determining  just  what  you  want 
one  way  or  the  other.  Let  us  leave  it  open,  and  discuss  the 
general  question  for  a  little  while. 

Mr.  Boyd:  I  insist  on  a  vote  on  the  amendment. 

The  Chairman  :  You  are  entitled  to  it  on  yours  if  you  want  it 
now.     Mr.  Gillette's  did  not  have  a  second. 

The  Chairman:  The  amendment  is  to  limit  the  medical  at- 
tendance to  the  period  of  disability.  I  mean  the  period  that  you 
pay  for  disability. 

Mr.  Gillette:  Sure,  but  it  is  not  a  limitation:  it  is  an  exten- 
sion. It  might  be  that  you  might  be  obliged  to  hire  nurses  and 
hospital  service,  that  would  go  to  work  and  equal  the  amount  of 
your  compensation. 

The  Chairman:  Well,  Mr.  Gillette,  when  we  first  started  this 
motion,  it  was  agreed,  as  I  understood  in  the  statement  of  the 
motion,  that  we  would  determine  first  the  principle,  and  leave  the 
limitations  as  to  amount  for  discussion  after  we  had  discussed  this. 
Now  this  other  question  raises  the  question  of  time. 

Mr.  Gillette:  It  raises  the  question  of  time  and  amount. 

Mr.  Smith:  Mr.  Chairman,  I  think  the  whole  question  is  out 
of  order  at  this  time  for  the  reason  that  you  say  an  employer  shall 
pay  for  the  cost  of  medical  attendance,  also  for  the  funeral  ex- 


139 

penses.  Now  you  have  not  agreed  at  this  time  what  kind  of 
compensation  fund  you  are  going  to  have.  You  do  not  know 
whether  the  employer  is  going  to  pay  it,  whether  the  hability 
insurance  company  is  going  to  pay  it,  or  whether  it  is  going  to  be 
paid  by  contribution  from  the  employer  and  the  employee,  but 
here  you  say,  ahead  of  all  that,  that  the  employer  shall  pay  it. 
Now  I  know  of  a  great  many  employers  that  the  doctor  would 
not  trust,  small  employers — and  some  big  employers.  What  we 
want  to  get  at  is  something  definite,  safe,  and  sure,  and,  when  we 
are  working  along  the  lines  of  a  commission  like  this,  we  ought  to 
be  sure  that  what  we  say  will  be  practicable,  and  not  make  any 
guess  at  anything  before  us  just  now.  I  think  the  whole  question 
is  a  little  out  of  order  and  a  little  ahead  of  questions  that  will 
come  in  a  few  minutes. 

The  Chairman:  I  think  the  amendment  is  proper  first,  if  you 
are  ready  to  vote  on  it. 

Mr.  Gillette:  I  shall  have  to  oppose  that  very  strenuously 
without  hmitation. 

Mr.  McEwen:  I  am  not  so  sure,  Mr.  President,  that  I  want 
any  injured  workman  subject  during  the  entire  period  of  his  dis- 
ability to  the  doctor  chosen  by  the  employer,  nor  to  the  hospital 
chosen  by  the  employer,  nor  to  the  nurse  chosen  by  the  employer. 
I  want  to  see  the  employee  have  something  to  say  about  that 
himself.  I  think  you  are  opening  up  a  question  that  has  aggra- 
vated the  situation  considerably  in  the  past. 

The  Chairman:  More  than  any  other  subject  in  Europe. 

Mr.  McEwen:  And  in  Minnesota  considerably.  My  mind  is 
not  perfectly  clear.     I  have  no  fixed  opinion  on  that. 

Mr.  Gillette:  Don't  you  think,  Mr.  McEwen,  you  can  fix 
it  this  way,  that,  if  the  employee  wants  it,  he  can  have  a  doctor 
furnished  by  the  company,  and,  if  he  wants  to  employ  his  own 
doctor,  he  can  do  it  at  his  own  expense? 

Mr.  Chaney:  I  don't  see  that  the  employer  has  control  of  the 
matter  at  all. 

The  Chairman:  The  question  is  whether  we  shall  put  the 
limit  on  the  time  stated  by  Mr.  Boyd's  motion  during  the  period 
for  which  disability  is  paid. 

Mr.  Chaney:  Does  the  original  motion  involve  the  question 
of  which  doctor  shall  be  used?     I  don't  see  that  it  does  at  all. 

Mr.  Saunders:  The'form  of  the  motion  does  provide  who 
shall  choose  the  doctor.     It  says  the  employer  ''shall  provide." 


140 

The  wording  is  that  in  every  case  the  employer  shall  provide 
medical  attendance  for  his  injured  employee.  Of  course,  if  he 
provides  it,  he  selects  it. 

Mr.  McEwen:  My  answer  to  Mr.  Chaney  would  be  that  it 
would  act  this  way:  the  employee  would  be  obliged  to  accept  the 
services  of  the  surgeon  furnished  by  the  employer  and  the  hospital 
provided  by  the  employer. 

Mr.  Schutz  :  I  move  as  a  substitute  for  the  motion  before  the 
house,  that  it  is  the  sense  of  this  Conference  that  medical  at- 
tendance and  funeral  expenses  in  case  of  death  be  considered  a 
part  of  the  compensation  to  be  furnished. 

Mr.  Wigmore:  I  second  the  motion. 

The  Chairman:  All  who  want  to  speak  to  that  motion  may 
do  so. 

Mr.  Gillette  :  You  mean  by  that  that  it  is  to  be  deducted  from 
the  compensation? 

Mr.  Neill:  May  I  suggest  as  an  amendment  there,  "that,  in 
addition  to  the  compensation  provided  herein,  the  medical  and 
surgical  fees  shall  be  borne  by  the  same  fund"  ?  That  is,  if  it  is 
a  joint  fund,  shall  be  assessed  against  the  same  fund  as  the  com- 
pensation. 

Mr.  Schutz:  I  have  no  objection  to  that. 

Mr.  Saunders:  I  think  there  you  are  getting  right  into  the 
doctor  problem  that  has  caused  so  much  trouble  abroad.  The 
minute  you  say  that  a  doctor's  bill  shall  be  paid  out  of  a  fund  or 
by  some  one  else  than  the  man  who  employs  him,  you  are  getting 
into  trouble.  This  is  put  in  this  form  just  for  this  reason:  We 
beheve  it  is  for  the  advantage  of  the  employer  as  well  as.the  em- 
ployee to  see  that  the  man  injured  is  cured  as  quickly  as  possible 
and  taken  proper  care  of,  but  it  is  not  of  advantage  to  either  party 
that  some  person  shall  be  doctoring  that  man  and  some  one  besides 
the  man  who  selected  him  shall  be  paying  him.  In  the  original 
motion  it  simply  says  that  each  concern  shall  do  what  the  best 
concerns  are  now  doing,  providing  for  the  doctor  and  for  the 
medical  attendance  in  the  hospitals  or  elsewhere  for  their  em- 
ployees, if  they  want  to  take  it.  Now,  if  the  employees  don't 
want  to  take  it  and  don't  like  the  doctor  and  don't  like  the  hos- 
pital, they  can  go  where  they  want  to  and  pay  for  it  themselves. 
Now  I  think  by  this  provision  you  get  away  from  the  doctor 
proposition  which  has  troubled  you  abroad. 

Mr.  Neill:  I  agree  thoroughly  with  that.     We  have  got  to 


141 

come  to  the  doctor  proposition  sooner  or  later,  and  we  might  as 
well  face  it.  There  may  be  an  objection  to  compelling  a  man  to 
take  a  doctor  selected  by  the  company.  On  the  other  hand,  it 
would  be  equally  objectionable  if  the  employee  is  allowed  to  get 
any  doctor  he  wants,  and  compel  the  employer  to  pay  any  bill 
that  the  doctor  chooses  to  send  in.  On  the  other  hand,  if  you 
were  going  to  have  the  employee  contribute  to  a  fund,  you  cannot 
then  have  the  employer  have  the  sole  right  to  say  who  the  doctor 
shall  be.  So,  it  seems  to  me,  you  have  got  to  make  some  pro- 
vision by  which  whatever  mechanism  controls  this  fund  shall 
control  the  doctor,  and,  if  the  employee  does  not  want  to  take 
that  doctor,  he  can  take  any  doctor  he  wants,  and  foot  his  own 
bills. 

Mr.  Gillette:  I  don't  see  why  you  need  get  into  that  ques- 
tion of  this  fund  right  now,  because  all  the  conclusions  of  this 
Conference  will  have  to  be  codified,  but  the  point  where  we  differ 
is  this:  the  curse  of  France  to-day  is  the  doctor's  bill.  The 
curse  of  it  is  that,  while  an  employee  selects  any  doctor  he  wants 
to,  the  employer  has  to  pay  for  it.  The  result  of  it  is  that 
the  young  doctor  is  going  to  work  to  keep  the  fellow  laid  up 
just  as  long  as  he  can  so  as  to  continue  the  compensation  for  the 
injured  employee  and  at  the  same  time  continue  his  own  com- 
pensation. You  have  got  to  put  all  the  safeguards  about  it, 
and,  in  my  opinion,  the  only  safe  way  to  do  is  that  the  employer 
shall  furnish  hospital  and  medical  service;  but,  if  the  employee 
doesn't  like  that  which  is  furnished  him,  he  can  go  and  employ 
anybody  he  wishes  to,  and  pay  for  it. 

Mr.  McEwen:  How  long  would  you  want  to  do  that? 

Mr.  Gillette:  I  would  want  to  put  a  limit  on  it.  Cannot 
you  see  the  dangers  that  arise  under  these  laws?  Suppose  an 
employee  says,  ''Well,  now  I  need  a  doctor."  He  goes  along,  and 
he  gets  a  doctor  and  a  nurse  there  and  a  hospital,  and  he  wants 
to  lay  up  for  an  undue  amount  of  time.  Now  place  a  limit  on 
it,  so  that  the  total  expense  will  not  exceed  one  hundred  dollars. 

The  Chairman:  This  amendment  opens  up  the  whole  doctor 
question.  As  I  suggested  in  the  beginning,  I  thought  you  would 
have  to  come  to  it.  Now,  for  instance,  personally,  when  I  was  in 
Europe,  that  was  one  question  that  I  paid  more  attention  to 
than  any  other,  and  I  have  got  here  half  a  page  of  my  conclu- 
sions on  the  situation  over  there  that  I  wrote  on  the  boat,  coming 
over,  while  my  mind  was  fresh.     In  the  first  place  there  were  two 


142 

objections  that  were  chronic  in  every  country  visited.  The 
laborer  objects  to  the  employer's  physician  because  he  thinks 
there  is  the  danger  of  being  ordered  out  too  soon,  that  is,  before 
he  is  well,  and  because  he  fears  that  the  evidence  of  the  doctor 
will  be  prejudicial  against  him  when  he  gets  into  court  or  before 
the  court  of  arbitration.  On  the  other  hand,  the  employer 
objects  to  the  laborer's  physician,  because  he  is  often  incompetent. 
Labor  is  not  as  well  fitted  to  select  a  good  professional  man  as 
the  employer,  as  a  rule.  The  physicians  that  employees  get,  the 
employer  claims,  are  more  inclined  to  cause  malingering.  That 
is  terribly  so  in  Paris,  according  to  testimony.  It  seems  to  me 
that  the  laborer,  if  he  was  inclined  to  be  crooked,  would  go  to 
the  physician  who  would  keep  him  sick  as  long  as  he  could,  if 
he  could  select  his  physician,  and  the  employer  also  says,  when 
the  laborer's  physician  comes  into  court,  he  is  prejudiced  in  favor 
of  the  laborer.  He  cannot  get  his  fees  in  many  cases  unless  the 
laborer  recovers  something,  and  he  can  get  his  fees  as  long  as 
the  fellow  needs  treatment,  and  he  will  continue  to  keep  him 
sick,  and  do  everything  he  can  to  see  that  he  gets  a  part  of  the 
wage. 

Now  it  seems  to  me  that  there  are  two  or  three  things  that 
ought  to  be  covered  to  meet  those.  In  the  first  place,  what  the 
State,  the  employer,  and  the  employee  wants  is,  first,  competent 
treatment.  They  want  it  immediately.  They  want  the  best  that 
can  be  had,  and  they  don't  want  to  wait  for  somebody  to  quibble 
about  it,  or  somebody  who  is  not  competent  to  select  it  in 
the  beginning.  The  second  is  that,  in  case  they  have  to  go  into 
court,  the  laborer  is  entitled  to  have  fair  and  competent  evidence 
in  case  there  is  a  dispute,  unprejudiced  evidence,  that  is,  evi- 
dence that  is  not  in  favor  of  one  side  or  in  favor  of  the  other, 
but  scientific  evidence,  and  they  are  entitled  to  have  a  treatment 
that  will  prevent  malingering  and  fairly  determine  the  period  of 
disability.  Now  it  seemed  to  me  that  from  the  employer's  stand- 
point, in  thinking  it  over,  these  things  might  be  considered  as 
fairly  good  from  his  standpoint: — 

A.  That  the  average  employer  is  more  competent  to  judge 
a  physician,  that  is,  a  good  professional  man,  just  as  he  is  more 
competent  to  judge  a  good  lawyer.  He  has  had  more  experience 
in  the  world. 

B.  His  interest  is  to  have  good  treatment,  the  ver}^  best 
treatment  he  can  get  to  his  men,  get  them  well  as  quickly  as 


143 

possible.  But  he  ought  not  to  be  allowed  to  let  that  physician, 
when  he  gets  into  court,  testify  as  a  medical  man  on  expert  testi- 
mony, colored  by  his  interest,  which  he  may  have  in  the  employer's 
employment,  and  that  will  happen  in  this  case,  as  it  happens 
in  street  railway  cases.  It  happens  in  railroad  cases.  It  happens 
in  damage  cases  all  over  the  country  to-day,  so  much  so  that  the 
doctors  are  considering  the  necessity  of  a  neutral  system. 

C.  If  they  can  agree  on  a  good  physician  or  a  selection  of 
physicians  in  a  town,  that  is,  if  the  employer  and  employee  can 
agree  on  a  physician  that  can  be  called,  that  is  the  ideal  system, 
it  would  seem  to  me.  If  they  cannot  agree,  then  for  the  question 
of  evidence,  whichever  treats,  whether  it  is  the  employer's  doctor 
or  the  employee's  doctor,  that  doctor  ought  to  be  compelled  to 
make  a  diagnosis  of  his  case,  to  immediately  notify  a  doctor 
selected  by  the  board  of  arbitrators  or  the  State.  Whichever 
you  determine,  let  him  take  that  diagnosis,  see  what  that  treat- 
ment is,  be  in  position  to  give  evidence  any  time  he  is  called  on, 
of  a  neutral  nature.  So,  when  you  come  into  court,  you  get 
something  that  is  not  based  on  one  side  or  the  other.  Neither 
the  employee  nor  the  employer  ought  to  be  permitted  to  pay 
that  man  except  out  of  a  common  fund.  He  ought  to  be  an 
expert  witness  for  the  State,  and  let  the  State  pay  him.  So 
that  neither  the  employee  nor  the  employer  shall  have  any  rights 
over  him,  that  is,  in  case  there  is  a  dispute.  Now,  if  there  is  not 
any  dispute,  that  is  not  necessary. 

Now,  from  the  standpoint  of  the  laborer,  the  laborer  wants  his 
physician,  if  he  can  get  him,  and  that  is  often  quite  an  important 
matter  with  him,  as  he  views  it;  but  I  have  come  to  the  conclu- 
sion that  there  is  a  good  deal  of  sentiment  in  that.  If  he  has  a  phy- 
sician of  his  own,  and  if  he  can  try  his  case,  that  physician  ought 
to  give  the  State's  doctor  an  opportunity  to  examine  and  give 
evidence  that  would  be  of  a  neutral  nature,  so  that  we  get  as  evi- 
dence one  man  in  that  controversy  that  is  not  paid  by  either  party, 
that  has  not  the  interest  of  either  party  to  maintain,  but  who  will 
give  us  his  expert  judgment.  And  it  seems  to  me  that  in  the 
whole  doctor  question  we  would  not  have  the  trouble  they  had 
over  there. 

Mr.  Wigmore  :  Cannot  you  frame  your  suggestion? 

A  Member:  May  I  suggest,  as  the  employer  pays  the  cost 
of  accidents,  therefore  the  employer  is  entitled  to  know  his  medi- 
cal facts?    Consequently,  I  am  thoroughly  in  sympathy  with  the 


144 

idea  that  prevents  the  employee  from  substituting  his  own  doctor 
and  refusing  to  allow  the  employer's  doctor  to  see  him.  So  I 
suggest  that  the  i&rst  burden  for  the  immediate  attention — it 
is  the  immediate  aid  that  we  want — should  be  put  upon  the  em- 
ployer; that  the  employer  should  have  the  duty  of  having  a  med- 
ical examination  made  within  a  specified  time  immediately  after 
the  accident,  and  within  six  days  he  should  fm-nish  the  copy  of 
the  report  of  his  doctor  to  the  injured  man.  Then,  if  the  in- 
jured man  has  his  own  doctor  to  make  an  examination,  and  there 
is  any  clash,  the  injured  man  must  notify  his  employer  within 
six  days.  At  the  end  of  that  period  there  must  be  a  reference,  if 
there  is  a  dispute,  to  the  State  medical  referee  for  a  decision, 
with,  of  course,  permission  to  these  gentlemen  to  arrange  in  those 
cases  where  they  cannot  decide  right  off  for  a  further  examina- 
tion on  the  same  terms. 

Mr.  Browne:  If  the  employee  shall  elect,  the  employee  shall 
provide.  If  he  does  not  elect,  the  expenses  will  be  thrown  on 
him. 

The  Chairman:  If  he  is  knocked  senseless,  what  is  he  to  do 
about  election? 

Mr.  Browne  :  Then  the  employer  must  act. 

Mr.  Rohr:  ''The  first  two  weeks  shall  not  be  paid  for,  but 
shall  include  medical  and  hospital  attendance  to  be  furnished  by 
the  employer,  and,  in  case  of  death,  funeral  expenses  not  to  ex- 
ceed one  hundred  dollars." 

Mr.  Gillette:  I  will  accept  that.  Give  that  in  lieu  of  the 
first  two  weeks. 

The  question  was  then  put,  and  the  motion  prevailed. 

The  Chairman  :  I  understand  that  is  a  substitute  for  the  whole 
proposition. 

A  Member:  I  beg  to  submit  another  proposition.  This  leaves 
the  whole  question  of  hospital  treatment,  after  two  weeks,  open. 
That  is  useless  for  a  man  that  is  seriously  injured. 

The  Chairman:   He  gets  his  compensation  after  that. 

A  Member  :  In  other  words,  there  is  no  hospital  payment  after 
two  weeks. 

The  Chairman:  That  is  right. 

Mr.  Dickson:  I  regret  I  shall  have  to  leave  the  Conference 
this  afternoon,  and  I  want  to  offer  one  or  two  things  to  change 
the  current  of  your  thoughts  for  a  moment.  In  the  first  place, 
I  want  to  sav  that,  when  I  received  the  invitation  to  this  Con- 


145 

ference,  I  had  no  appreciation  whatever  of  the  work  that  was 
going  to  be  done.  My  only  regret  is  that  I  did  not  arrange  by 
some  means  to  have  every  member  of  the  New  Jersey  Commis- 
sion here,  because  I  think  it  is  going  to  be  the  most  important 
conference  that  a  man  could  hope  to  attend. 

I  want  to  have  the  opportunity  first  of  offering  a  vote  of  thanks 
to  the  gentlemen  from  Massachusetts,  who  organized  this  con- 
ference. 

The  Chairman:  It  will  be  taken  as  the  unanimous  sense  of 
the  meeting  that  the  Massachusetts  Commission  is  entitled  to 
a  vote  of  thanks  for  getting  us  together  on  this  proposition. 

Mr.  Dickson  :  I  want  to  emphasize  one  or  two  things  we  have 
already  mentioned.  Mr.  Boyd,  very  early  in  our  Conference, 
made  this  statement,  that  in  any  bills  framed  we  must  be  careful 
not  to  remove  the  so-called  common  law  defences,  fellow-servant, 
assumption  of  risk,  contributory  negligence,  without  putting  in 
their  place  some  harbor  of  refuge,  if  you  may  so  state,  for  the 
small  employer.  I  think  we  ought  to  keep  that  very  prominently 
in  view.  As  a  matter  of  justice,  I  think  they  ought  to  be  re- 
moved, because  I  think  they  are  antiquated;  but,  as  practical 
men,  we  ought  to  see  that  we  don't  open  up  means  of  unfair 
discrimination,  particularly  against  the  small  employer. 

I  am  not  a  lawyer,  and  I  speak  with  diffidence  on  that  subject. 
My  own  conviction  is  that  the  final  solution  of  this  subject  in 
America  is  going  to  come  from  compulsory  State  insurance. 

I  should  Uke  to  offer  a  motion  that  before  final  adjournment 
the  chairman  appoint  a  committee,  requesting  them  to  frame  a 
skeleton  bill  based  on  our  conclusions.     I  offer  that  as  a  motion. 

Mr.  Rohr:  I  second  the  motion. 

The  motion  prevailed. 

Number  8.     Shall  Employees  contribute  to  the  Fund  for 

CARRYING  this   EXPENSE? 

Mr.  Smith:  I  move  you  we  answer  that  yes. 

Mr.  Alexander:  I  second  the  motion. 

The  Chairman:   Are  there  any  remarks? 

Mr.  Smith:  Mr.  Chairman,  it  seems,  in  all  the  different  lines 
of  argument  regarding  the  situation  as  it  is  in  the  different  States 
throughout  our  country,  that  we  all  agree  upon  compensation. 
We  go  down  the  line  very  quietly  until  we  come  to  the  eighth 


146 

question,  which  is  now  before  us,  "Shall  the  employees  pay?" 
That  seems  to  be  the  parting.  We  take  then  different  directions. 
Now  some  may  have  reasons  for  and  against.  I  would  like  to 
hear  it  discussed  thoroughly,  and  every  man  express  his  opin- 
ion wh}''  he  thinks  it  should  be  this  way  or  that.  My  reason  for 
employees  paying  in  part  to  the  fund  that  will  be  created  is  that 
the  main  object  and  the  great  benefit  to  be  derived  from  compen- 
sation is  the  prevention  of  accidents.  How  are  we  going  to  frame 
a  bill  that  will  prevent  to  the  greatest  degree  accidents?  That 
is  the  main  question,  in  my  opinion,  before  the  Commissions  of 
different  States.  I  claim  that,  if  the  employee  is  a  party  to 
this  fund,  he  will  be  more  careful;  although  he  may  not  like 
his  fellow-man  who  is  working  alongside  of  him,  but  because  he 
is  a  party  to  that  fund  and  his  money  is  in  that  fund,  that  he  will 
say:  **Here,  Jones,  pull  away  from  there.  You  are  going  to 
get  hurt.'*  And  because  he  knows  that,  if  this  fund  decreases, 
his  expense  advances,  it  is  a  selfish  proposition  on  his  side,  there- 
fore he  will  try  to  prevent  accidents,  and  that  will  be  the  great- 
est safeguard  of  all  the  machinery  that  is  used  in  the  industry, — 
the  men  themselves. 

The  next  reason  why  he  should  be  a  party  to  this  compensation 
fund  is  that  from  what  I  have  learned  between  fifteen  and  twenty 
per  cent,  of  the  personal  injuries  have  any  cause  for  action  in 
the  courts.  It  is  the  eighty  per  cent.,  then,  gentlemen,  that  we 
have  to  consider.  We  are  going  to  make  a  law  to  take  care  of 
the  eighty  per  cent.,  and  the  greatest  number  should  always  be 
considered.  That  is  my  belief.  Now,  that  being  the  case,  that 
we  are  going  to  compensate  those  that  have  no  right  for  com- 
pensation, I  feel  that  the  American  workman  is  honest,  the  Ameri- 
can workman  is  fair,  and  the  American  workman  is  not  a  chari- 
table party,  nor  does  he  require  or  ask  any  charity  from  you  or 
from  me,  and  he  is  always  willing  to  pay  his  part  and  do  his  duty. 
But  the  arguments  will  be  brought  forth  by  some  workingmen 
that  the  industry  should  pay  it  all,  and  then  we  come  down  to 
the  industry.  What  is  the  industry?  The  industry,  as  we  look 
at  it,  or  I  look  at  it,  is  something  that  is  there  where  the  em- 
ployer derives  an  income  from  and  where  the  employee  derives 
an  income  from.  Therefore,  he  is  a  part  of  the  industry.  When 
you  come  down  to  saying  that,  that  the  industry  should  stand  it 
all,  he  is  a  part  of  the  industry. 


147 

The  Chairman:  Any  one  further  want  to  be  heard  on  that 
question? 

Mr.  Dickson:    Will  Mr.   Smith  state  for  all  present  what 
particular  interest  he  represents? 

Mr.  Smith:  I  am  in  the  horse-shoeing  business.     1  represent 
the  employers  in  this. 

The  Chairman:  Any  one  else  want  to  be  heard  on  this? 

Mr.  Boyd  :  We  all  realize,  of  course,  when  we  get  a  compensa- 
tion whereby  fifty  per  cent,  of  the  weekly  wages,  or  sixty  per 
cent.,  or  two-thirds  of  the  wages  is  going  to  be  paid  as  compensa- 
tion, somebody  is  bearing  the  other  fifty  per  cent.,  the  other 
forty  per  cent.,  or  the  other  one-third.  The  laboring  man  and  the 
dependants  of  the  laboring  man  are  certainly  bearing  that  burden. 
Now,  under  the  German  scheme,  where  they  have  sick  insurance 
covering  a  short  period,  thirteen  weeks,  after  that  sickness  is  an 
accident,  or,  as  Bismarck  formed  the  proposition,  it  is  required 
that  the  employer  pay  all  compensation.  And,  to  speak  broadly, 
the  theory  on  which  the  statesman  Bismarck  put  in  the  sick 
insurance  was  largely  because  the  workingmen  were  already 
organized  in  sick  associations,  and  it  is  not  the  point  of  a  states- 
man to  tear  down  anything  that  is  the  natural  evolution  of  so- 
ciety. He  also  took  this  point,  that  he  would  preserve  those 
associations,  and  in  connection  with  them  they  sought  to  get 
the  co-operation  of  the  workingmen  to  that  limited  extent, — 
prevention  of  accidents  and  reducing  the  amount  of  sickness  for  a 
short  period  over  which  he  had  more  control  than  the  employer. 
Now,  as  has  been  said  by  the  gentleman  from  Montana,  we  are 
trying  to  settle  fundamental  principles,  if  possible,  on  which  we 
can  agree  throughout  the  largest  majority  of  the  States  which 
have  Commissions.  If  we  do  not  require  the  employee  to  con- 
tribute, say,  to  an  accident  insurance  which  begins  when?  It 
doesn't  begin  at  the  beginning :  it  begins  after  two  weeks,  according 
to  the  rules  we  have  laid  down.  Who  is  shouldering  the  two 
weeks?  The  employee,  certainl}^  is  shouldering  two  weeks. 
Now,  as  we  have  formulated  this  plan,  it  would  be  exceedingly 
unjust  to  put  in  a  requirement  that  the  employee  should  con- 
tribute anything,  if  we  are  going  to  recommend  only  an  accident 
insurance,  leaving  out  old  age,  leaving  out  sick  insurance,  leaving 
out  occupational  diseases,  or  a  later  action.  Now  the  sole  theory 
on  which  Bismarck  put  these  propositions  through  in  Germany — 
and  I  want  to  impress  upon  the  minds  of  some  of  the  gentlemen 


148 

here  that  there  is  not  a  scheme  suggested,  there  is  not  a  scheme 
in  existence,  of  compensation  which  is  not  taken  bodily  from  Bis- 
marck's proposition.  It  is  true  that  England  does  not  make  it 
compulsory  on  the  employer  to  insure  against  his  accidents,  but 
that  is  simply  an  omission  from  the  German  provision.  It  does 
not  require  him  to  insure.     He  may  insure. 

Then  you  come  to  the  question  of  pauperism.  Why  do  you 
tax  B  to  support  A?  Why  did  Bismarck  limit  the  clause  to  those 
that  earn  three  thousand  marks  or  less?  On  the  theory  that 
you  had  again  reached  a  point  in  civilization  where  you  required 
interference  on  the  part  of  the  State,  not  on  constitutional  grounds, 
but  on  the  same  grounds  you  instituted  compulsory  education, 
the  same  ground  you  tax  B  to  support  A,  and  solely  on  those 
grounds  under  which  we  would  call  police  power,  and  he  limited 
it  to  a  class  for  the  same  reason  that  those  who  earned  more  than 
three  thousand  marks  were  able  to,  and  the  State  did  not  have  to. 
How  can  a  man  in  the  United  States  insure  himself  if  he  earns 
only  two  dollars  a  day?  He  cannot  buy  insurance,  and  the  State 
does  not  furnish  any  means.  He  cannot  buy  it,  and  that  is  the 
sole  grounds  for  the  insurance  act.  I  shall  vote  against  the 
motion. 

Judge  Hollo  way:  I  want  to  say  a  word  in  supplement  of 
what  has  just  been  said.  As  I  understand  the  motion,  it  is  now 
that  the  employee  shall  contribute.  If  that  is  the  motion,  I  am 
opposed  to  it.  I  did  not  suppose  that  that  question  would  arise, 
but,  as  has  just  been  said,  during  the  first  two  weeks  the  injured 
employee  bears  all  the  loss.  During  the  period  of  his  disability 
he  is  bearing  either  one-third  or  one-half  of  the  loss. 

But  there  is  another  consideration.  The  manufacturer  just 
simply  shoves  off  his  proportion  on  to  the  good  people  who  buy 
his  product,  and  he  does  not  lose  anything.  But  who  is  the 
laboring  man  going  to  put  his  off  on  to?  He  has  not  anybody. 
He  has  to  bear  his  part,  if  you  put  any  part  on  to  him.  But 
the  manufacturer  can  make  his  additional  risk  or  cost  an  incident 
of  the  business,  and  add  it  on  to  the  cost  of  production.  They 
take  those  things  into  consideration  to-day,  don't  they?  Every 
large  manufacturing  or  mining  industry  keeps  its  legal  depart- 
ment, and  as  an  item  of  the  cost  of  its  product,  whatever  it  may 
be, — whether  it  is  raw  copper  or  finished  shoes, — the  expense  of 
maintaining  the  legal  department,  the  expense  of  paying  judg- 
ments on  personal  injury  actions,  enters  as  a  part  of  the  cost  of 


149 

the  copper  or  the  shoes.  And,  if  you  add  on  a  little  more  to  the 
employer's  liability,  he  will  simply  add  a  little  more  on  as  the 
cost  of  his  product,  and  eventually  he  can  escape  liability  for 
any  part  of  it.  But  the  employee  cannot,  and  it  does  seem  to 
me  that,  in  the  proportion  that  we  have  allowed  and  ratified, 
we  have  imposed  upon  the  workingman  about  all  he  is  able  to 
stand. 

Mr.  Rohr:  While  I  do  not  care  to  go  into  a  lengthy  debate 
on  this  question,  I  do  have  three  or  four  principles  that  are  funda- 
mental, and  I  wish  to  register  them.  I  am  opposed  to  compelling 
employees  to  contribute:  first,  because  he  contributes  when  he  is 
injured;  secondly,  he  again  contributes  by  possibly  total  or  per- 
manent or  temporary  injury;  third,  the  employee  again  con- 
tributes when  he  or  his  family  purchases  these  goods  which  he 
has  had  a  part  in  producing;  fourth,  that  society,  as  a  whole, 
should  bear  the  cost,  even  to  the  extent  of  the  State  bearing  the 
cost  of  administration. 

In  answer  to  what  Mr.  Smith  said  in  regard  to  any  working 
man  or  woman  being  opposed  to  contributing  to  such  fund,  I 
wish  to  state  I  have  a  speaking  acquaintance  with  some  twenty- 
eight  thousand  men  and  women  of  Cincinnati,  and  a  larger  one 
over  the  State,  whom  I  have  conversed  with  either  personally  or 
through  their  representatives,  and  with  one  accord  they  are  of 
the  opinion  that  it  will  be  one  of  the  greatest  incentives  on  the 
part  of  the  employer  to  reduce  accidents  to  a  minimum  if  the 
burden  is  borne  by  the  product.  He  will  be  very  careful  to  see 
that  all  means  of  protecting  life  and  limb  will  be  put  into  effect. 
I  am  entirely  opposed  to  the  motion. 

Mr.  Lowell:  Mr.  Chairman,  I  shall  not  take  your  time  long. 
I  do  not  beUeve  in  contribution.  I  shall  vote  no  on  this,  and 
there  are  one  or  two  things  that  have  not  been  touched  on  yet. 
I  will  speak  first  to  the  question  of  detail  in  this  thing,  which,  in 
the  practical  working  out,  is  really  a  serious  question.  How  are 
you  going  to  provide  for  the  payment  of  the  employees  of  this 
contribution?  Now  that  has  been  a  serious  thing  in  Germany. 
They  have  to  cancel  stamps,  and  they  have  to  do  all  sorts  of 
administrative  details  which  are  a  great  nuisance.  There  is  a 
great  deal  of  shifting  of  employment,  and  while,  of  course,  it  is 
better  to  have  the  employees,  as  a  body  of  a  large  factory,  a 
pretty  permanent  force,  still  it  is  not  fair  on  the  employee  to 
bind  him  so  closely  to  that  one  factory  that  he  cannot  change. 
He  ought  to  be  able  to  change. 


150 

There  is  a  class  of  labor  which  is  known  in  England  as  casual 
labor.  It  is  principally,  in  Boston  at  any  rate,  the  'longshore- 
men. How  are  you  going  to  provide  for  contribution?  How  can 
you  do  it?  The  'longshoreman  there  in  Boston  works  for  maybe 
one  day  for  one  man  and  another  day  for  another  man  and  a 
third  day  for  another  man.  I  don't  see  how  you  can  provide 
for  that  system.  If  you  can  provide  for  it,  there  is  a  very  serious 
matter  of  detail.  So  that  it  seems  to  me  that,  if  you  decide  for 
contribution,  you  must  consider  very  carefully  whether  the  whole 
thing  is  not  more  than  set  off  by  the  difficulty  in  carrying  it  into 
effect. 

Now  here  is  another  point  which  a  gentleman  from  Germany 
brought  out  to  us.  He  is  the  head  of  the  "Mutual  Association 
among  the  Owners  of  Vessels  engaged  in  Various  Kinds  of  Trans- 
portation by  Sea."  He  advises  very  strongly  against  contribu- 
tion from  the  employers'  standpoint,  for  this  reason :  he  says  that 
you  cannot  make  the  contribution  enough  so  that  a  slight  reduc- 
tion in  the  amount  which  the  wage-earner  will  have  to  contribute 
will  amount  to  anything  for  him.  He  named  various  instances, 
but  probably,  brought  down  to  American  conditions,  it  would 
be  that  if  you  reduced  the  total  cost  of  this  thing  on  the  employer, 
if  by  a  very  careful  supervision,  and  so  forth,  you  reduced  the 
total  cost  on  the  employer,  you  would  only  reduce  the  amount 
of  the  workingman's  contribution  by,  say,  two  cents  a  week. 
It  would  work  out  something  very  small,  and  he  says  that  is  not 
enough,  in  his  opinion,  to  bring  in  the  factor.  If  the  employer 
contributes,  it  is  up  to  him  to  see  that  accidents  do  not  occur. 

Then  this  is  his  main  point.  He  says  that,  in  his  opinion, 
your  contribution  by  the  workingmen  will,  in  a  short  time,  rela- 
tively to  the  length  of  time  your  law  goes  into  operation,  be  made 
up  by  a  raise  in  wages,  and  that  he  is  very  strong  on.  He  says, 
if  you  make  the  employees  contribute  ten  per  cent.,  that  in  five 
years,  say,  or  whatever  it  may  be,  the  wages  will  rise  ten  per 
cent,  simply  to  cover  that.  Then  you  have  got  the  situation  of 
the  employer  really  paying  the  whole  thing,  and  in  the  mean  while 
for  the  future  you  have  all  the  disadvantages  and  no  offsets^ 
as  it  seems  to  me,  of  the  system.  Then  what  I  hope  to  see  in 
the  future  of  this  thing  is  this,  and  I  have  voted  all  through, 
and  I  shall  vote  whenever  it  comes  up  again,  for  fifty  per  cent, 
contribution,  the  idea  being  that  by  fifty  per  cent,  contribution 
you  are  splitting  it  in  half,  because  the  fifty  per  cent,  from  the 


151 

employee  is  contributed  by  the  pain  and  suffering  and  by  the 
fifty  per  cent,  reduction  in  wages.  That  is  my  idea  of  the  em- 
ployee's contribution.  Now  what  I  want  to  see  in  the  final 
outcome  of  this  thing,  is  this:  I  want  to  see  this  law  go  in.  It 
has  got  to  be  a  first  step,  anyway:  we  all  realize  this.  I  want  to 
see  in  future  a  contribution  by  the  employees,  and  have  the 
whole  thing  covered  from  the  day  of  the  accident.  Have  also 
accidents  outside  of  the  factory  covered.  I  mean  accidents  on  the 
street,  for  which  the  employer  cannot  be  responsible.  Then  pos- 
sibly, if  it  works  out  so,  have  the  amount  of  percentage  larger, 
and  I  think,  it  seems  to  me  that  there  is  a  chance  of  working 
that  system.  It  seems  to  me  that  it  is  a  good  answer,  a  good 
legislative  answer,  if  you  come  to  that, — I  have  been  in  the  Massa- 
chusetts Legislature,  I  am  not  there  now,  but  I  was  there  for 
three  years, — it  seems  to  me  a  good  legislative  answer  when  they 
come  in,  as  of  course  they  will  come  in,  everybody  knows  that, 
wanting  a  larger  maximum,  to  say,  "If  you  will  contribute,  we 
will  frame  the  law  so  it  covers  not  only  accidents  in  the  plant, 
but  accidents  outside,  and  a  certain  amount  of  sickness  not  due 
to  accidents  at  all,  and  possibly  a  larger  contribution  or  a  longer 
extension  of  the  period,"  something  of  that  sort.  It  seems  to  me 
that  we  should  not  put  in  the  contribution  in  the  first  law  of  this 
kind  for  the  several  reasons  which  I  have  already  stated. 

Mr.  Schutz  :  I  quite  agree  with  the  last  speaker  that,  certainly 
at  the  outset,  it  would  be  very  unwise  to  have  a  contribution 
on  the  part  of  the  employees.  I  do  think  that  some  form  of 
sick  insurance  must  follow  as  a  correlative  to  this  plan  of  accident 
insurance,  and  we  are  perfectly  justified  in  stating  that,  in  addi- 
tion to  the  contribution  which  the  employee  makes  through 
pain  and  suffering,  he  will  be  expected  as  a  correlative  to  this 
present  plan  to  contribute  to  a  sick  insurance  which  will  benefit 
him  and  at  the  same  time  benefit  the  industry.  So  I  am  opposed 
to  the  contribution  on  the  part  of  the  employee  in  any  system 
of  accident  insurance. 

Mr.  Bailey:  Just  a  single  word.  I  started  out  believing  that 
there  should  be  a  contribution  by  the  workmen,  but,  since  I  have 
thought  it  all  over,  I  have  come  around  to  the  other  way  strongly, 
and  for  one  reason  which  has  not  been  stated  yet,  namely,  this: 
in  nine  cases  out.  of  ten,  as  I  understand  it,  the  employers  take 
care  of  themselves  by  employers'  liability  insurance.  The  work- 
ingman  cannot  do  that  to  the  same  extent,  and  for  that  reason, 


152 

also,  I  think  that  the  workingmen  should  not  be  called  upon  to 
contribute. 

Mr.  McEwen:  Just  one  word.  I  agree  with  most  that  has 
been  said,  and  I  recognize  that  we  are  all  hungry;  but  T  do  not 
want  this  opportunity  to  go  by  without  expressing  my  views  on 
the  subject.  I  want  to  do  the  right  thing.  Labor  wants  to  es- 
cape from  no  burden  it  ought  to  bear  in  this  matter.  I  do  not 
want  to  commit  one  bit  of  injury  to  industry,  because  I  recognize, 
if  we  penalize  industry  in  any  way,  we  are  helping  ''kill  the  goose 
that  lays  the  golden  egg,"  and  I  realize  in  the  past  few  years  we 
are  coming  to  look  upon  the  human  side  more  than  we  have  in 
the  past.  That  is  evident  by  the  expression  of  such  men  as 
Mr.  Dickson  and  Mr.  Gillette  and  Mr.  Smith  here  to-day,  and 
others  at  other  meetings  of  this  kind.  The  ground  has  been 
covered,  and  it  has  been  said  that  the  consumer  pays  the  present 
cost,  and  will  continue  to  pay  the  additional  cost  that  the  industry 
will  be  obliged  to  bear  because  of  this  new  burden.  On  the  other 
hand,  if  labor  is  asked  to  contribute  to  this  measure  of  compen- 
sation that  we  suggest  here  to-day,  in  addition  to  that,  it  will 
be  obliged  to  bear  fifty  per  cent,  of  loss  in  wages  up  to  six  years, 
and  then  all  the  loss  after  that, — the  pain,  the  loss  of  pleasure 
from  pain,  and  a  multiplicity  of  things.  Now,  supposing  labor 
was  obliged  to  contribute,  to  what  fund  would  it  contribute?  If 
it  is  to  be  accident  insurance,  conducted  by  an  accident  company, 
complicated  by  proof,  what  voice  would  labor  have  in  the  dis- 
tribution of  this  fund?  I  have  stated  quite  frequently  about  the 
community  of  which  I  have  some  knowledge  in  Northern  Minne- 
sota. The  Steel  Corporation  has  a  club  fund  up  there  outside  of 
the  employers'  liability  scheme.  Each  laborer  in  the  mines  con- 
tributes seventy-five  cents  a  month  to  a  fund.  They  organize 
a  society  there,  and  some  relief  committee  dispenses  the  fund, 
rather  in  equity.  There  is  no  complaint  about  how  that  fund 
is  paid.  Now  recently  there  has  been  organized  by  the  Ocean 
Company,  I  think,  a  scheme  of  workingman's  collective  insur- 
ance. The  workingman  pays  his  seventy-five  cents  a  month  to 
the  company,  and  the  company  turns  it  over  to  this  insurance 
company,  and  a  cold-blooded  claim  agent  settles  the  amount  with 
an  ignorant  man  unacquainted  with  business  conditions  and  not 
in  any  way  his  equal  in  adjusting  a  claim.  As  the  result  of  that, 
there  are  endless  complications,  and  then  there  is  this  feeling,  too. 
This  work  is  mostly  of  a  migratory  kind,  a  seasonable  kind.     A 


153 

man  may  work  for  a  period  of  time  in  the  mines,  and  another 
period  of  time  in  the  harvest  fields,  and  another  period  of  time 
on  railroad  construction  work.  I  talked  personally  with  one  man 
who  contributed  to  three  funds  in  one  month,  seventy-five  cents 
to  the  workingman's  fund  in  one  mining  company,  and  worked 
there  about  ten  days,  and  then  contributed  seventy-five  cents  to 
another  company,  and  worked  there  about  seven  days,  and  con- 
tributed seventy-five  cents  to  the  third  company,  all  in  one 
month.  In  addition  to  that,  he  is  obliged  to  pay  a  dollar  a  month 
for  hospital  service,  and  I  have  not  noticed  any  increase  in  wages 
arising  from  this  contribution.  Now  it  has  been  said  by  Mr. 
Smith  that  the  workingman  does  not  want  charity.  I  say  no, 
he  does  not;  but  he  feels  that  it  is  a  debt  industry  owes  to  him 
for  the  risk  he  takes.  The  wages  are  not  considered.  The 
amount  of  wages  are  not  considered  for  the  risk.  Really,  the 
man  who  does  the  most  work  to-day  gets  the  least  wages.  Dr. 
Zacher  said  labor  was  responsible  for  about  twenty-nine  per  cent, 
of  the  accidents.  These  are  due  to  the  negligence  of  the  employee. 
Now  I  don't  believe  that.  I  don't  believe  it  is  really  negligence 
so  much  as  momentary  forgetfulness.  Familiarity  breeds  con- 
tempt. A  man  moves  about  hazardous  machinery,  wants  to 
keep  pace  with  the  movement  of  the  machinery.  The  result  is 
he  takes  chances  to  increase  the  output,  and  he  ought  not  to  be 
called  upon  to  bear  the  burden  simply  because  it  is  called  neg- 
ligence. 

You  say,  "Well,  the  laborer,  if  he  contributes  some,  will  be  in- 
terested in  seeing  that  his  fellows  do  not  contribute  to  the  acci- 
dents." In  the  first  place,  you  want  to  remember  that  labor  has 
nothing  whatever  to  say  about  who  his  fellow-employee  shall  be, 
whether  he  shall  be  competent  or  incompetent,  whether  he  shall 
receive  a  low  or  a  high  wage.  I  noticed  in  my  study  of  this 
thing,  dealing  right  with  the  men  who  are  hurt,  considering  nine 
thousand  seven  hundred  and  thirty-two  accidents  which  hap- 
pened in  Minnesota  from  July  1,  1909,  to  July  1,  1910,  that 
in  the  hazardous  industries  the  accidents  which  occur  most  fre- 
quently are  to  men  that  have  been  in  the  employ  of  the  com- 
pany but  a  short  time.  I  think  that  the  record  of  the  Oliver 
Mining  Company  in  Minnesota  will  show  that,  and  that  a  very 
large  portion  of  the  accidents  occurred  to  the  men  the  last  half- 
hour  in  the  morning  and  the  last  half-hour  in  the  evening,  when 
they  are  tired;   and  taking  the  whole  matter  into  consideration, 


154 

with  the  small  amount  of  compensation  awarded,  with  burdens 
that  labor  must  through  the  risk  of  an  industry  be  called  upon  to 
bear,  I  think  it  is  asking  too  much  of  labor  to  ask  it  to  contribute 
at  this  time.  I  have  this  to  say  about  the  proposition  made  by 
Mr.  Lowell,  that,  if  labor  is  to  be  compensated  for  all  accidents, 
whether  they  occur  at  the  man's  work  or  going  to  it  or  from  it, 
probably  labor  should  contribute,  and  we  might  build  up  a  system 
of  paternalism  that  will  include  sickness,  accident,  and  old  age 
pensions.  That  may  come  with  the  development  of  time.  But 
at  present  I  don't  think  you  are  offering  enough  to  call  upon  labor 
to  make  a  financial  contribution. 

Mr.  Alexander:  I  move  we  adjourn  until  an  hour  from  now, 
and  then  continue  the  discussion  of  this  very  important  matter. 

The  motion  prevailed,  and  accordingly  the  Conference  took  a 
recess  until  2.15  p.m. 


155 


Fourth  Session,  Friday,  November  11,  1910,  2.15  P.M. 

The  fourth  session  of  the  Conference  was  called  to  order  at  2.15 
P.M.  by  Chairman  Mercer. 

The  Chairman:  Gentlemen,  we  have  under  discussion  the 
question  of  whether  the  employee  shall  contribute  towards  the 
expenses  of  carrying  this  liabihty. 

Mr.  Alexander:  Is  it  your  pleasure  now,  Mr.  Chairman,  to 
read  this  communication? 

The  Chairman:  There  is  a  communication  which,  if  there  is 
no  objection,  I  will  read,  from  August  Belmont.* 

The  question  we  had  under  discussion  was  the  question  of  con- 
tribution from  employees.     Who  wants  to  be  heard  on  it? 

Mr.  Howard:  As  representing  the  small  manufacturer,  I 
believe  it  is  in  the  interest  of  manufacturers,  as  well  as  the  em- 
ployees, to  have  no  contribution  made  by  the  employees.  I  do 
not  believe  that  contribution  by  employees  will  have  any  de- 
terrent effect  upon  the  number  of  accidents.  In  fact,  I  do  not 
believe  that  a  man  thinks  when  he  is  doing  a  dangerous  occupation 
of  how  much  compensation  he  is  going  to  receive  if  he  gets  hurt. 
He  does  a  dangerous  thing  which  is  unnecessary  because  he  thinks 
he  will  not  get  hurt  and  because  it  saves  time  or  trouble.  The 
best  way,  in  my  opinion,  to  prevent  accidents  is  to  put  the  burden 
on  the  emploj^er.  If  the  burden  is  on  the  employer,  he  will  make 
more  stringent  rules  and  see  that  his  employees  live  up  to  them. 

Another  objection  to  contribution  by  employees,  which  has 
already  been  made,  is  that  it  furnishes  at  once  an  argument  for 
increase  of  wages,  and  it  does  not  stop  there.  You  give  the  in- 
crease of  wages,  and  then  it  drifts  along  for  a  few  years  and  the 
men  are  still  having  this  taken  out  of  their  pay,  and  they  forget 
in  a  very  short  time  that  there  was  one  increase  made  to  cover 
that  contribution,  and  they  will  say  the  cost  of  living  and  all  that 
sort  of  thing  has  gone  up  since  then,  and  in  this  way  it  seems  to  me 
that  the  tax  which  is  taken  out  of  the  employee's  wage  is  a  con- 
tinuing source  of  irritation  that  will  last  just  as  long  as  that  tax 
lasts,  and  will  always  give  an  excuse  for  increase  of  wages  and  for 
dissatisfaction.  On  the  other  hand,  if  the  employer  pays  the 
whole  of  it,  it  gives  him  a  good  argument  for  not  increasing  wages, 

♦Appendix  "C." 


156 

because  he  can  then  say  justly  that  this  State  law  has  obliged 
him  to  make  a  very  large  contribution  which  he  had  not  made 
before  and  which  ought  to  be  considered  in  any  future  wage  in- 
crease, and  that  is  a  continuing  argument  which  he  always  has, 
so  that  from  the  selfish  interests  of  the  employer  I  think  that  he 
should  pay  the  whole  cost. 

Regarding  Mr.  Smith's  fear  that  the  compensation  would  be 
increased  to  an  enormous  expense,  that  it  might  start  at  three 
thousand  dollars,  the  next  legislature  make  it  ten  thousand  dol- 
lars, and  the  next  one  twenty  thousand  dollars,  it  seems  to  me  that 
by  adopting  the  principle  of  making  no  lump-sum  payments  that 
we  have  taken  the  sting  out  of  that.  I  do  not  think  that  you  can 
conceive  of  any  Legislature  making  the  weekly  payments  as  high 
as  the  wage  would  have  been  if  the  man  had  not  been  injured. 
In  other  words,  as  Commissioner  Neill  said,  the  employee  has  got 
to  bear  a  portion  of  the  damage  resulting  from  the  accident. 
You  can  never  expect  to  put  him  in  the  same  position  he  was  be- 
fore the  accident,  and  no  Legislature  will  ever  agree  to  that.  I 
do  not  think  the  unions  would  agree  that  a  member  who  was  not 
doing  any  work  and  who  was  not  working  hard  day  after  day 
should  receive  just  as  much  compensation  as  the  other  man  who 
was  working  hard.  So  that  the  limit  to  which  the  compensation 
could  be  increased  would  never  go  beyond  or  never  go  up  to  one 
hundred  per  cent,  of  the  wages.  It  is  conceivable  that  sometimes 
it  might  go  to  seventy-five  per  cent.,  but  it  seems  to  me  it  would 
be  almost  absurd  to  think  of  it  ever  exceeding  such  a  point.  I 
think  that  covers  all  that  I  wish  to  say. 

The  Chairman:  Has  any  one  anything  further  to  say  on  this 
question?  Gentlemen,  I  should  feel  like  agreeing  with  all  of  you 
that,  if  the  laborer  stands  half  of  the  loss  from  the  standpoint  of 
wages,  it  is  not  quite  right  to  him  to  put  anything  else  on  to  him, 
especially  if  he  stands  the  first  two  weeks.  But  I  should  hate 
worse  than  anything  else  that  I  have  seen  discussed  here  to  see 
this  Conference  adopt  a  scheme  which  would  limit  it  to  half, 
limit  it  to  two  weeks,  limit  it  to  hospital  bills  of  one  hundred  dol- 
lars, and  then  cut  out  the  theory  of  letting  the  laborer  contribute. 
I  think  it  would  be  the  worst  possible  thing  that  could  happen 
from  the  standpoint  of  labor,  because,  when  you  do  that,  you 
must  essentially  cut  out  the  strongest  element  that  the  laborer 
has  in  the  remedy,  if  you  are  going  to  have  anything  in  the  way 
of  a  board  of  arbitration,  and  you  leave  substantially  all  the  old 


167 

feeling  as  to  the  wrong,  as  to  the  trial  of  his  case,  if  he  has  any 
trial  growing  out  of  it,  as  to  the  animosity,  as  to  the  place  where 
the  blame  for  the  accident  lies,  and  you  won't  accomplish  what,  in 
my  judgment,  is  the  greatest  thing  in  this  scheme,  the  best  that 
can  be  done  toward  the  matter  of  prevention.  The  compen- 
sation is  rather  for  future  matters  and  a  secondary  consideration. 
Unless  your  compensation  is  so  adapted  that  it  will  automatically 
work  as  a  preventive  to  accidents,  you  are  going  to  lose,  as  it 
seems  to  me,  more  than  half  of  the  benefits  you  get  out  of  this 
thing.  It  is  far  better  that  the  men  be  not  injured  than  that  they 
be  compensated  after  they  are  injured.  So,  if  possible,  let  us  put 
it  in  the  position  where  it  will  be  a  motive  on  both  sides  to  prevent 
injury.  Now,  I  think,  it  is  conceded  by  labor  men  generally 
that  no  man  thinks  he  is  going  to  be  hurt  himself.  If  he  does, 
he  is  what  is  called  in  the  language  of  the  street,  a  "fraidy-cat.'' 
But  every  other  fellow  around  him  can  see  whether  he  is  in  a 
dangerous  position.  No  man  thinks  an  accident  is  going  to 
happen  to  him  if  he  takes  the  cap  off  an  emery  wheel.  No  man 
thinks  he  is  going  to  fall  in  the  river  if  he  undertakes  to  jump 
from  one  girder  to  another  when  he  is  working  on  a  bridge  across 
the  river,  but  he  would  object  to  another  fellow  doing  it  if  he 
had  any  voice  in  it.  The  laboring  man  has  a  better  opportunity 
to  determine,  when  a  man  is  injured,  whether  he  is  faking  the 
injury.  He  has  his  associations,  he  knows  the  conditions,  he  can 
tell  better  and  quicker  and  more  accurately  whether  the  men  are 
faking  or  whether  it  is  a  legitimate  injury.  He  has  a  better 
chance  to  put  on  safeguards  than  anybody  else  connected  with  the 
business,  he  has  a  better  chance  to  know  his  fellow-employees 
are  observing  the  rules  of  the  shop;  and  a  little  bit  of  a  contri- 
bution from  him,  say  one-sixth  of  the  charges,  is  going  to  mean  so 
much  more  than  it  will  to  the  employer  that  it  will  have  a  moral 
influence.  But  those  are  not  the  worst  things.  When  you  come 
to  the  question  in  Europe,  I  called  on  every  prominent  labor  man 
I  could.  Every  one  I  put  the  question  to  said,  *'No,  we  don't 
want  to  contribute,"  but  every  fellow,  when  I  put  it  to  him  in 
this  light,  said,  *'Yes,  make  him  contribute,  if  you  give  him  a 
correspondingly  increased  wage  if  he  is  hurt.  Instead  of  fifty, 
give  him  sixty,  if  he  is  hurt,  and  charge  one-sixth  of  the  carry- 
ing charges  against  him;  and,  in  addition  to  that,  make  your 
arbitration  committee  composed  of  one  laboring  man  and  one 
business  man  and  one  neutral  man."      Now  the  difficulty  in 


158 

Europe  is  not  that  question  of  payment  so  much  as  it  is  the  ques- 
tion of  how  to  determine  the  proposition  after  the  injury  occurs. 
You  go  into  those  countries  like  Norway  and  Sweden  and  those 
that  have  taken  part  of  the  German  system  and  depend  upon  the 
employer  to  settle  the  controversy  in  the  first  instance,  and  who 
give  them  no  voice  nor  any  neutral  party  at  first,  but  the  party 
who  must  pay  the  compensation,  and  you  have  a  man  judging 
his  own  case.  Now  it  won't  do  to  put  a  labor  man  on  this  Com- 
mission, in  my  judgment,  and  have  him  so  that  there  is  absolutely 
no  pay  to  come  out  of  his  fellow-workmen:  he  can  make  any 
judgment  he  wants  on  it,  because  any  man,  laborer  or  employer, 
going  on  this  Commission,  is  bound  to  be  a  little  bit  prejudiced 
in  his  views.  If  you  put  him  on  the  Commission,  and  say,  "You 
shall  have  a  voice  in  determining  it,  even  though  you  are  a  little 
bit  prejudiced  in  it,  yet,  if  you  vote  so,  part  of  it  has  to  come  out 
of  yourselves  or  out  of  the  wage  fund  which  you  create,"  he  is 
going  to  have  an  impetus  to  balance  him,  just  as  the  employer 
will.  Then  you  put  on  your  third  member  to  reach  an  equitable 
conclusion.  So  it  seems  to  me  the  very  curse  of  several  of  those 
systems  in  Europe  was  that  the  insurance  company  or  somebody 
else,  without  any  other  representative,  says  to  the  laborer:  "We 
will  give  you  so  much.  If  you  don't  want  to  take  that,  you  can 
go  to  the  courts."  One  of  the  very  worst  things  now  in  our 
system  is  that  the  insurance  companies  go  to  a  man,  and  say: 
"Now  we  will  give  you  so  much.  If  you  don't  do  it,  your  lawyer's 
fees  are  going  to  cost  you  so  much,  court  fees  so  much.  You  can- 
not maintain  your  case.  Here  is  a  hundred  dollars,"  shake  it 
under  his  nose,  and  he  takes  it.  Or,  "Here  is  ten  dollars,"  or 
"five  hundred  dollars."  And  over  and  over  again  I  have  known 
of  those  settlements  being  made,  and  you  all  have  in  your  own 
respective  States.  You  leave  all  the  malice  between  the  em- 
ployer and  employee,  all  the  question  of  blame,  all  the  hard 
feelings  that  will  grow  out  of  your  accident,  that  you  have  now, 
if  you  do  not  put  it  in  position  where  both  sides  must  feel  a  little 
bit  of  responsibility,  both  must  have  a  voice  in  the  distribution 
of  the  fund,  and  both  must  feel,  when  the  fund  is  administered, 
they  have  had  a  part  in  it,  and  it  is  their  obligation,  and  they 
must  use  that  fund  when  it  reaches  a  point  where  it  is  fair  to 
do  it.  And  I  should  very  much  hate  to  see  this  Commission 
committed  to  the  doctrine  that  no  contributions  should  be  made, 
but  I  am  not  willing  from  a  personal  point  of  view  to  say  all  men 


159 

should  be  limited  to  fifty  per  cent.,  and  I  have  not  been  all  the 
time.  I  think  a  man  should  have  sixty  instead  of  fifty  per  cent., 
if  they  are  going  to  take  it  out  of  the  wages.  Then  I  think  he 
should  be  represented  on  the  board  of  arbitration.  You  cannot 
say  to  an  employer,  "You  must  be  worth  one  hundred  thousand 
dollars  before  you  can  engage  in  this  business,  in  order  to  make 
the  credit  secure,"  but  you  can  say  to  him  he  cannot  take  any- 
thing out  of  the  workingman's  wages  unless  he  insures  in  a  mutual 
organization  that  has  proper  assets  and  proper  reserves  to  be  reg- 
ulated by  the  State,  or  in  some  other  company  that  will  carry  out 
the  full  terms  of  this  law.  Then  put  an  impetus  on  him:  then 
you  put  him  in  position  where  the  bank,  when  he  goes  to  borrow 
his  money,  says:  "Here,  you  have  a  risk  here.  Have  you  any 
insurance?"  "No."  "Then  your  credit  is  not  good  at  this  bank. 
You  are  liable  to  be  wiped  off  the  face  of  the  earth. "  Then  your 
unions  will  discriminate  against  the  fellow  that  does  not  carry  in- 
surance in  some  form,  if  they  think  there  is  any  question  about 
his  ability  to  do  business.  He  can  carry  it  a  long  time  and  carry 
it  all  over  the  whole  industry.  It  seems  to  me  it  would  be  a  very 
great  mistake  to  put  this  in  a  position  where  it  has  all  got  to  come 
from  one  side,  and  limit  it  to  fifty  per  cent.,  when  you  can  put  it  to 
sixty  per  cent,  and  let  it  come  out  that  way,  and  give  people  the 
benefit  of  representation  on  the  arbitration  committee,  and  we 
would  profit  bj^  a  lot  of  the  mistakes  that  have  happened  on  the 
other  side  of  the  water,  as  I  view  them,  from  what  investigation 
I  made. 

Mr.  Lowell:  Mr.  Chairman,  may  I  ask  you  what  you  would 
do  in  the  case  of  the  'longshoremen  or  the  other  casual  laborers, 
where  they  may  not  work  for  the  same  employer  for  more  than  a 
day  at  a  time? 

The  Chairman:  Well,  that  is  a  matter  of  detail  to  be  worked 
out  by  the  committee.  I  assume  the  insurance  policy  would 
cover  the  actual  wage  scale,  so  that  it  would  be  very  easy  to  get 
at  that  and  define  how  much  it  would  be.  It  would  be  a  very 
small  amount.  This  matter  of  compensation,  in  the  way  you  are 
putting  it,  is  only  going  to  be  a  few  cents  a  month  on  employer 
and  employee  both.  But  the  opportunity  they  have  to  investi- 
gate, I  think,  is  a  very  strong  element  in  this  law. 

Mr.  Schutz:  May  I  ask  whether  you  think  ten  per  cent, 
additional  would  be  such  an  incentive  to  the  employee  that  he 
would  really  feel  he  was  getting  any  adequate  compensation? 


160 

The  Chairman  :  I  think  it  means  more  to  the  laborer.  I  think 
ten  per  cent,  of  that  sixty  per  cent,  would  mean  just  as  much  to 
the  laborer  as  it  would  to  the  employer,  in  the  honest  administra- 
tion of  the  fund. 

Mr.  Schutz  :  The  only  fear  was  that  the  laborer,  when  he  re- 
ceived this  settlement,  would  say,  ''Why,  all  you  are  giving  me  is 
sixty  per  cent."  He  would  think,  if  he  was  contributing,  he 
ought  to  get  a  good  deal  higher  than  sixty. 

The  Chairman:  Hadn't  you  just  as  well  charge  him  ten  per 
cent,  of  carrying  charges  and  give  him  sixty  per  cent,  as  charge 
him  nothing  and  give  him  fifty  per  cent.? 

Mr.  Neill:  Mr.  Chairman,  I  have  lost  a  good  many  beautiful 
opportunities  to  keep  silent.  I  should  be  very  much  inclined  to 
agree  with  Mr.  Mercer  if  I  thought  his  argument  had  vahdity 
as  a  matter  of  fact.  It  comes  down  to  a  question  of  comparative 
strength  of  two  motives.  I  was  just  figuring  here  rapidly — I 
don't  assume  that,  on  the  average,  the  expense  of  any  new  law 
will  go  above  three  per  cent,  of  the  pay-roll.  If  you  put  one-sixth 
of  it  on  the  workingman,  we  will  assume  that  the  average  wages 
are  six  hundred  dollars,  that  is  eighteen  dollars  per  year:  the  work- 
man pays  three  dollars  a  year  out  of  that,  that  is  six  cents  a  week. 
You  expect  that  his  interest  in  that  will  induce  him  to  keep  a 
certain  eye  on  his  fellow-employees  and  keep  them  strict.  In  the 
second  place,  it  has  been  suggested  that  he  would  on  that  account 
oppose  a  large  total  payment.  He  looks  at  it,  and  he  says:  ''I 
am  paying  six  cents  a  week.  If  I  keep  this  amount  down,  I  save 
two  or  three  cents  a  week.  If  I  let  the  amount  go  up  and  I  get 
injured,  I  make  three  thousand  dollars."  Now  it  is  a  perfectly 
staggering  proposition  to  tell  him  he  can  get  insurance  for  three 
cents  a  week.  It  seems  to  me  that  the  motive  you  think  would 
affect  him  is  so  sHght.  Now,  if  he  is  sitting  on  the  arbitration 
board,  he  does  not  sit  there  by  virtue  of  his  contribution  of  ten 
per  cent.,  but  by  virtue  of  his  right  to  see  the  law  properly  ad- 
ministered. Assume  the  man  sits  there:  here  comes  up  the  case 
of  John  Smith.  He  says,  "I  am  going  to  deny  John  Smith  one 
thousand  dollars  or  two  thousand  dollars,  and,  on  the  other  hand, 
I  save  the  individual  members  of  my  class  two  or  three  cents  a 
week  for  the  period  of  five  or  six  weeks."  Now  we  all  know  that, 
when  you  look  at  a  benefit  that  is  so  widely  distributed  that  it 
means  nothing,  it  has  no  force.  If  you  look  at  the  concrete  benefit 
to  this  man,  it  will  offset  that  to  such  a  degree  I  don't  think  it 


161 

would  have  any  effect  either  as  sitting  on  the  board  of  arbitration 
or  as  affecting  his  fellow-workingman.  You  introduce  an  element 
of  extreme  friction  that  all  the  workingmen  will  be  opposed  to, 
for  I  have  not  found  one  that  was  not  opposed  to  any  contributory 
plan  at  all.  And,  in  return  for  that,  you  get  nothing  in  the  law 
you  are  figuring  on  to  justify  the  contribution. 

The  Chairman:  I  think  the  fallacy  in  your  argument  lies  in 
the  fact  that  you  assume  that  this  is  going  to  be  looked  at  by  the 
man  who  is  on  the  arbitrators'  board  for  this  particular  wage, 
but  he  is  there  representing  the  aggregate  of  these  men,  knowing 
that  one-sixth  voted  for  this  man  must  come  out  of  the  fund, 
and  you  will  find  in  this  country,  as  in  the  other  countries,  as 
soon  as  the  men  get  their  organization  in  good  condition,  the 
labor  organization  will  be  furnishing  the  attorney  to  prosecute 
these  claims  before  the  board,  because  they  can  hire  him,  under 
what  we  call  in  the  West  a  "kept  system,"  by  the  year,— ryou  will 
find  they  will  make  a  little  assessment  to  take  care  of  the  carrying 
charges  of  this  fund.  So  he  is  in  just  the  same  position  the  em- 
ployer is.  He  says:  ''We  are  giving  this  fellow  ten  dollars  a  week. 
Now  he  has  got  well.  That  is  my  business  to  look  into  it.  He 
is  well  now.  He  should  not  be  drawing  it.  Are  we  giving  him 
three  thousand  dollars,  when  he  is  only  entitled  to  eighteen  hun- 
dred dollars?    One-sixth  of  that  comes  out  of  my  union." 

Mr.  Rohr:  Our  records  show  some  seventeen  miUion  people 
are  a  direct  charge  on  society.  The  three  miUion  men  and  women 
to  whom  I  have  reference  have  contributed  sums  as  high  as  three 
dollars  a  month.  If  you  put  this  additional  burden  on  this  three 
million  to  carry  the  seventeen  million,  I  presume  they  would  dis- 
band your  organization,  and  the  minute  you  do  that  a  sociological 
question  comes  up  of  who  is  going  to  fight  the  battle  for  labor. 
That  is  one  of  the  fundamental  things  that  has  made  labor  in  the 
United  States  what  it  is  to-day, — independent,  not  quite  so  much 
of  a  serf  as  in  the  old  countries. 

The  Chairman:  Anybody  else  want  to  argue  that  question? 

Mr.  Wigmore  :  I  am  going  to  vote  no  on  this,  although  I  came 
here  thinking  to  vote  yes,  and  I  have  no  argument  to  advance 
after  all  has  been  said,  except  one,  which  I  feel  completely  disposes 
of  the  main  argument  that  you  advance, — the  moral  influence  of 
this  payment  in  watching  other  workmen.  When  you  think 
that  for  seventy  years  the  workman  under  the  fellow-servant  rule 
has  had  the  penalty  of  life  and  limb  to  make  him  watch  his  fellow- 


162 

servant  and  keep  him  from  being  careless,  and  that  has  apparently, 
to  judge  by  the  vote  here,  proved  entirely  a  failure,  how  can  you 
say  that  six  cents  a  week  is  going  to  have  any  effect? 

Mr.  Sanborn:  I  just  want  to  make  one  suggestion  that  was 
brought  out  in  the  discussion.  I  shall  vote  no  on  this,  because  I 
think  in  principle  it  is  wrong;  but  you  speak  of  the  arbitration, 
and  you  speak  of  putting  a  laboring  man  and  a  manufacturer  on 
the  board  of  arbitration.  To  my  mind,  that  is  fundamentally 
wrong.  When  we  inaugurated  our  Commission,  that  was  one  of 
the  hard  propositions  we  had  to  contend  for.  The  shippers  wanted 
a  man;  the  railroads  wanted  a  man.  Now,  if  you  are  going  to 
make  a  board  of  arbitration,  make  it  in  fact  what  you  are  going 
to  make  it  in  name.  You  simply  put  two  men  on  there  who  are 
partisans.  That  is  just  the  very  thing  a  board  of  arbitration 
should  not  be.  You  leave  one  man  for  the  board;  you  have  one 
man  for  the  board.  Now  make  a  board  in  the  first  place  that  both 
the  laboring  men  and  the  employers  have  confidence  in.  Base  the 
character  of  it  in  that  way.  Their  acts  will  be  public,  just  as  the 
judges  are.  Who  would  think  of  putting  on  our  Supreme  Court 
bench  one  man  to  represent  the  railroad  companies?  Now  that 
is  what  I  object  to.  When  you  come  to  a  board  of  arbitration, 
make  it  a  board. 

Mr.  Howard:  Mr.  Chairman,  I  would  hke  to  say  that  ac- 
cording to  Mr.  Krogman,  whom  Mr.  Lowell  has  already  men- 
tioned, the  thing  that  Commissioner  Neill  was  afraid  of  has 
actually  taken  place  in  Germany.  In  the  case  of  sickness  in- 
surance, where  both  contribute,  the  fact  that  the  employee  con- 
tributes has  not  had  a  deterrent  effect  on  the  amount  paid  for 
accidents.  It  has  had  the  reverse  effect.  It  is  the  employee  in 
that  case  who  has  the  majority  vote  on  the  board  of  control, 
and  through  his  labor  organization  he  has  insisted  on  having 
examining  doctors  who  are  liberal.  In  other  words,  he  considers 
it  much  better  to  pay  a  few  cents  a  week  more  in  the  way  of  con- 
tribution, and  then  have  a  doctor  who  will  be  very  liberal  if  he 
is  injured,  and  give  him  one  hundred  per  cent,  compensation; 
while,  if  the  doctor  had  been  appointed  entirely  by  an  unsym- 
pathetic board,  he  might  have  only  had  seventy-five  per  cent. 
According  to  Mr.  Krogman,  that  has  been  the  case  to  such  an 
extent  that  reputable  doctors  to-day  are  unwilling  to  serve  as 
examining  doctors  for  sickness  insurance  in  Germany.  It  is 
quite  a  scandal,  especially  in  Berlin. 


163 

The  Chairman:  Gentlemen,  you  are  reaching  almost  your 
hour  limit.     Shall  we  extend  the  discussion? 

The  previous  question  was  moved. 

Mr.  Gillette  :  I  do  not  want  to  enter  into  any  extended  argu- 
ment on  this.  Everybody  knows  I  am  very  strongly  in  favor  of 
contribution  on  the  part  of  the  workman.  I  have  been  unfortu- 
nate not  to  have  been  present  during  this  discussion,  as  our  com- 
mittee has  been  out,  but  I  heard  what  Mr.  Lowell  had  to  say 
about  the  difficulty  first  of  collecting  this  contribution,  which  I 
think  would  be  very  slight,  inasmuch  as  it  could  be  done  very 
easily  in  making  up  the  pay-rolls.  I  am  in  favor  of  using  this 
contribution  as  a  means  of  practically  compelling  the  employer 
to  insure.  I  think  that  I  would  favor  a  plan  by  which  these  con- 
tributions could  only  be  exacted  in  case  the  employer  did  insure, 
thereby  nsuring  absolutely  to  the  injured  employee  the  solvency 
of  the  fund  from  which  his  compensation  payments  were  to  be 
made.  I  agree  with  most  of  the  speakers  that  I  have  heard  that 
eventually,  probably  soon,  it  would  be  a  contribution  from  the 
employees  in  name  alone.  By  that  I  mean  that  the  wage  rate 
would  adjust  itself  to  the  amount  of  the  contribution,  and  that 
therefore  it  probably  would  not,  except  nominally,  come  out  of 
the  employee.  But  even  under  those  conditions  I  still  would 
strongly  favor  the  contribution  plan.  I  believe  that  there  would 
be  no  effective  deterrent  against  malingering.  I  believe  that  the 
consensus  of  opinion  among  those  abroad  who  have  had  to  do 
with  it  is, — the  vast  majority  of  them, — I  grant  there  is  a  difference 
of  opinion,  but  the  vast  majority  of  the  workers  are  in  favor  of  the 
contribution  plan.  I  wish  to  record  my  regret  that  the  discussion 
of  a  compensation  scheme  has  fallen  under  that  name.  Some  of 
you,  knowing  how  I  am  committed  to  what  is  generally  known  as 
workingmen's  compensation,  may  be  a  little  startled  when  I  say 
that  I  am  not  in  favor  of  what  we  might  say  is  the  workingmen's 
compensation  act.  What  I  mean  is  that  I  believe  it  is  not  correctly 
designated  by  the  name.  I  believe  in  what  we  are  discussing  as 
a  workingmen's  compensation  act,  but  what  I  believe  in  firmly 
is  not  a  compensation  scheme.  In  other  words,  I  don't  believe, 
gentlemen,  that  there  is  any  compensation  for  the  loss  of  an  arm 
or  the  loss  of  a  leg  or  the  loss  of  a  father  or  the  loss  of  a  brother, 
that  there  is  any  compensation  that  can  run  through  the  whole 
category  of  injuries  which  affect  the  human  race  engaged  in 
industrial  enterprise.     My  ideal,  and  my  idea  is  in  favor  of  a  plan 


164 

along  the  lines  which  we  have  discussed,  but  that  the  fundamental 
basis  of  the  whole  scheme  is  an  insurance  proposition.  That  is 
what  the  German  scheme  is.  It  is  what  the  Austrian  scheme  is, 
and  that  is  what  absolutely  divorces  it  from  the  basic  principle 
of  the  English  act. 

Now  any  insurance  proposition  to  my  mind,  under  existing 
circumstances,  not  in  its  ultimate  amount  or  its  ultimate  end,  must 
be  mutual.  The  argument  that  the  workingman  is  already  con- 
tributing in  his  loss  of  half -wages,  or  his  dependants  in  the  loss  of 
half-wages  of  him  who  was  their  support,  or  the  loss  of  the  first 
two  weeks  in  the  waiting  period, — it  appeals  to  the  human  element 
within  me,  but,  after  all,  it  does  not  exactly  appeal  to  my  sound 
reason  and  judgment.  What  I  mean  by  it  is  this,  that,  after  all, 
when  you  come  to  analyze  the  injuries  and  the  accidents  which 
occur  in  industrial  enterprise,  when  you  come  to  bring  it  down  to 
its  last  analysis  and  to  place  human  responsibility  upon  the  in- 
dividual to  whom  it  belongs,  then,  if  each  one  of  us  were  a  man  of 
equal  opportunity,  equal  judgment,  and  should  assume  a  responsi- 
bility in  an  equal  degree  for  our  own  acts,  we  would  do  away  with 
the  basis  for  a  multitude  of  the  actions  which  are  now  brought  and 
the  majority  of  the  recoveries  which  are  now  made.  But  we  cannot 
found  society,  nor  can  we  carry  it  along  on  that  basis.  And  so  you 
take,  as  in  the  German  experience,  according  to  Dr.  Zocker,  twenty- 
nine  and  a  fraction  per  cent,  of  the  accidents  which  occur  in  Ger- 
many to-day  are  caused  by  the  fault  of  the  workingman  himself. 
A  very  considerable  portion  are  caused  by  the  natural  conditions 
and  inevitable  conditions  of  the  industry.  We  cannot  place  in 
these  modem  days  the  responsibility  upon  everybody  of  taking  care 
of  the  results  of  his  own  fault.  So  I  say  that  it  seems  to  me  that 
the  only  logical  thing  that  we  can  do  is  to  do  what  Germany 
with,  in  many  respects,  the  most  scientific  act  there  is,  has  done, 
reduced  this  matter  to  a  social  question  largely,  of  a  compulsory 
form  of  insurance.  Now  they  do,  in  spite  of  what  has  been  said, 
the  German  workman  does  contribute.  He  contributes,  and  so 
does  the  Austrian.  They  contribute  in  just  about  like  proportion. 
They  contribute  just  about  practically  ten  per  cent,  of  the  cost  of 
insurance.  The  figures  of  that  will  vary  very  slightly  from  that 
unit. 

Mr.  McEwen:  By  the  way,  he  is  compensated  not  only  for 
industrial  accident,  but  for  every  accident  out  of  that. 

Mr.  Gillette:  But  what  I  mean  to  say  by  that  is  that,  when 


166 

you  come  to  reduce  and  charge  to  the  accident  fund  the  proportion 
which  is  borne  by  the  sickness  fund,  it  will  amount  to  just  about 
ten  per  cent,  of  the  cost  of  the  accident  fund.  In  Austria  it  is  ex- 
actly that,  substantially. 

Mr.  Sanborn:  And  it  takes  a  two-thirds  of  the  contribution 
to  carry  the  sickness. 

Mr.  Gillette:  The  statistics  of  Germany  show  that,  when 
you  come  to  apportion  the  care  of  accidents  which  are  paid  for 
out  of  the  sickness  fund  during  the  first  thirteen  weeks  to  the 
accident  fund,  it  means  that  the  workingmen,  in  addition  to  paying 
their  share  for  the  sickness  fund,  are  contributing  just  about  ten 
per  cent,  to  the  accident  fund. 

Mr.  Chaney:  Does  the  workman  know  that? 

Mr.  Gillette:  Yes.  The  strange  thing  about  it  is  to-day  that 
the  German  workman  wants  to  contribute  more. 

Mr.  Sanborn  :  They  are  opposed  to  the  manufacturer  reducing 
it  one-half.  They  wish  to  go  to  work  and  contribute  more,  and 
they  wish  to  get  a  voice  in  the  management  of  the  fund.  That  is 
the  great  thing  which  is  agitating  Germany  to-day,  and  that  is  the 
thing  which  I  dislike  very  much. 

Mr.  Gillette:  But  I  believe,  just  as  much  as  I  believe  any- 
thing, if  you  take  away  from  any  scheme  of  this  kind  the  principle 
of  mutuality,  to  however  slight  a  degree  you  may  be  able  to  inject 
it  into  it,  you  do  very  great  violence  to  the  whole  proposition, — ^I 
believe  that  it  will  prevent  malingering.  I  believe  that  it  will 
reduce  the  number  of  accidents,  and  I  believe  that  the  benefits 
in  general  will  vastly  inure  not  only  to  the  benefit  of  the  em- 
ployer, but  to  the  benefit  of  the  employee  as  well. 

And  then,  finally, — and  I  beg  your  pardon  for  having  taken  so 
much  time, — to  get  down  to  it,  I  am  in  favor  of  it,  gentlemen,  to- 
day, as  almost  a  sine  qua  non  for  the  introduction  of  these  acts. 
I  believe  that  the  experience  in  New  York  justifies  me  in  mak- 
ing the  statement  and  the  assertion, — I  do  not  believe  that,  in 
fairness  to  the  industries  of  any  given  State  which  you  can  name, 
it  is  going  to  be  possible  to  frame  an  act  with  the  provisions  which 
have  been,  in  conference,  sort  of  agreed  to  here,  without  so  ma- 
terially raising  the  cost  of  production  in  some  of  the  various  articles 
and  imposing  such  a  burden  on  the  industry  that  you  are  going 
to  meet  with  very  serious  consequences,  and  therefore,  in  the 
initial  stages  at  least,  I  say  that  it  is  highly  important,  almost 
absolutely  necessary,  that  a  portion  of  the  cost,  at  least,  should 
be  borne  by  the  employee. 


166 

Mr.  Doten:  I  just  want  to  ask  Mr.  Gillette  one  question. 
I  want  to  inquire  how  this  contribution  of  the  workingman  is 
going  to  ease  the  burden  for  the  employer  in  the  slightest  degree, 
when  it  is  based  fundamentally  upon  an  increased  compensation 
to  the  injured  employee. 

Mr.  Gillette  :  I  didn't  say  that. 

Mr.  Doten  :  That  is  the  contention  that — 

The  Chairman  :  That  was  mine. 

Mr.  Gillette:  I  said  that  ultimately  it  would  end  there.  It 
would  not  at  present.  By  the  time  it  does  end  there,  such  legisla- 
tion as  this  will  practically  spread  through  the  country,  I  think. 

Mr.  Alexander:  The  German  scheme  has  been  referred  to 
again  and  again,  and  I  feel  that  I  ought  to  make  a  statement 
about  it,  so  that  you  may  not  get  a  wrong  view  of  the  German 
scheme.  I  spent  three  months  in  Europe  this  summer  to  study 
the  matter,  perhaps  not  as  much  as  some  of  you  gentlemen  have, — 
but  I  have  the  advantage  of  having  grown  up  under  the  German 
system,  so  as  to  know  its  effect,  while  you  get  it  from  a  casual 
observance  or  from  the  interrogation  of  a  few  people.  Many 
years  of  business  activity  in  America  enable  me  to  draw  some 
comparisons. 

First,  the  statements  which  have  been  attributed  here  to  an 
eminent  German  manufacturer  are  correct — as  far  as  they  go. 
But  there  is  something  behind  it  which  I  suspected  from  the 
beginning  and  which  the  gentleman  admitted  before  he  left  New 
York  for  the  other  side,  when  I  put  the  question  to  him  very 
plainly.  There  is  a  whole  lot  of  politics  behind  that,  the  poUtics 
of  the  Social-Democrats  of  Germany,  and  that  we  don't  want  to 
forget.  When  Mr.  Krogmann,  whom  Mr.  Lowell  mentioned  in 
his  contribution,  says,  "We  don't  want  them  to  contribute," 
it  is  simply  for  the  purpose — and  he  admitted  it — that  he  and 
certain  other  manufacturers  may  have  this  matter  entirely  in 
their  own  hands  without  interference  from  any  source  whatsoever. 

It  is  true  that  German  workingmen  realize  that  they  are  con- 
tributing to  accident  insurance,  and  I  think  Mr.  Gillette's  state- 
ment of  about  ten  per  cent,  for  pure  industrial  accidents  is,  perhaps, 
<jorrect.  They  know  that  they  contribute,  and  they  are  satisfied 
to  contribute.  German  statistics  have  been  cited,  for  instance, 
that  twenty-nine  and  some  fraction  per  cent,  of  accidents  can  be 
attributed  directly  to  the  workman.  Now  let  us  be  careful  about 
that,  too.     It  is  correct  as  far  as  it  goes,  but  remember  that  the 


167 

Oerman  statistics  reflect  the  early  military  training  of  all  Germans. 
Everybody,  practically,  has  served  in  the  army,  and  is  carrying 
that  spirit  into  his  industrial  life,  so  that,  when  a  foreman  or  super- 
intendent tells  him,  ''You  must  do  so"  or  ''You  must  not  do  so," 
he  comes  pretty  near  doing  so.  He  has  been  used  to  being  com- 
manded and  directed  in  that  way,  and  he  follows,  while  the 
American, — and  I  am  not  talking  about  the  laborer  or  employer, 
but  all  of  us, — the  American  is  not  only  careless,  but  it  seems  to 
be  ahnost  in  his  character  to  show  his  independence  by  doing  al- 
most the  opposite  thing  that  he  is  told  to  do.  So  that  the  twenty- 
nine  per  cent,  of  the  German  workmen's  negUgence  in  this  matter 
does  not  hold  at  all  for  America,  where  we  will  have  a  far  larger 
percentage.  How  much,  we  don't  know.  We  have  no  statistics 
on  which  we  can  base  an  opinion.  We  have  statements  on  one 
side  and  statements  on  the  other  side :  both  deserve  some  credence. 
Insurance  companies  have  told  us  that  they  have  no  statistics 
that  would  be  of  real  value,  and  that  is  one  of  the  strongest  argu- 
ments why  we  should  go  most  conservatively  in  this  matter,  so 
that  on  a  conservative  basis  we  may  accumulate  statistics,  and 
on  the  basis  of  such  statistics  go  step  by  step  in  the  same  direc- 
tion. 

It  has  been  stated  that  a  contributory  scheme  is  impractical. 
Mr.  Lowell  raised  the  question,  how  we  could  take  care  of  'long- 
shoremen or  any  seasonal  employment.  That  is  a  matter  of 
detail.  I  can  easily  conceive,  under  a  State  insurance  plan,  a 
provision  that  whenever  an  employer  pays  wages,  whether  for  a 
day  or  a  week,  he  must  take  a  certain  percentage  of  the  wages  and 
deposit  it  with  the  State  and  add  the  same  amount  out  of  his  own 
pocket.  So  you  can  take  care  of  these  matters.  We  should  not 
throw  down  the  plan,  because  at  this  moment  we  may  not  be 
able  to  find  a  good  way  of  handUng  this  matter. 

Now  the  learned  gentleman  has  told  us  that  the  whole  problem 
is  very  easy,  because  all  the  cost  to  the  employer  can  be  put  into 
the  cost  of  production  and  the  sale  price  of  the  products.  For- 
tunately, I  am  in  the  employ  of  a  large  corporation  which  will 
not  be  so  much  affected  by  a  law  that  you  make.  First,  we  are 
large  enough  to  take  care  of  it  in  many  ways,  and,  secondly,  we 
are  sufficiently  protected  by  patents,  that  we  can  do  what  the 
gentleman  stated  in  regard  to  all  employers.  But  there  are  many 
thousands  and  tens  of  thousands  of  small  employers,  and  Mr. 
Howard  is  not  one  of  the  small  employers,  for  he  employs  over 


168 

three  hundred  men  m  an  industry  in  which  he  can  be  considered 
a  very  large  employer,  and  he  does  not  come  into  the  same  class  as 
Mr.  Smith,  who  employs  five  or  six  men,  with  enormous  compe- 
tition. The  small  employer  cannot,  or — at  least,  I  ask  the  question 
— can  he,  as  easily  transfer  the  charge  to  the  consumer?  He  might 
have  not  only  competition  in  his  own  State,  but  competition  in  all 
other  States  where  he  has  to  sell  a  great  deal  of  his  products. 
Shoe  manufacturers  have  told  me  again  and  again — I  know  some- 
thing about  the  cost  of  their  products — that  only  a  quarter  of  their 
production  is  sold  in  Massachusetts.  The  rest  has  to  be  sold  in 
other  States,  and  the  least  increase  in  cost  may  prevent  them  from 
selling,  may  therefore  prevent  them  from  doing  business  and 
giving  as  much  employment  as  they  are  giving  now.  We  must  do 
nothing  that  will  prevent  the  small  manufacturer  from  growing 
and  prospering  under  proper  conditions.  This  morning  I  objected 
to  certain  statements.  I  would  not  object  to  them  if  we  could 
enact  a  compensation  law  with  all  the  stringent  restrictions  and 
additions  that  you  wish  to  make  effective  all  over  the  United 
States,  because  we  can  then  adjust  ourselves  to  it  and  take  care  of 
ourselves  against  foreign  competition  through  the  protective 
tariff,  and  a  good  many  other  ways ;  but  we  cannot  enact  a  strong 
proposition,  even  though  we  may  concede  the  justice  of  it,  if  we 
are  not  sure  that  our  neighboring  States  will  about  the  same  time 
do  the  same  thing,  because  in  the  mean  time  we  are  apt  to  kill  off 
the  small  manufacturer,  who  cannot  come  to  the  surface  again, 
and  we  must  look  out  for  him  as  much  as  anybody.  Everybody 
wants  justice  done  to  all.  There  is  practically  no  one  who  wants 
to  do  an  injustice  to  any  one  else  or  who  wants  to  put  his  foot 
on  his  neck  and  keep  him  down.  That  spirit  does  not  exist  except 
in  a  very  few  cases,  and  exists  on  both  sides  where  it  does  exist. 
We  want  justice  done,  and  we  must  look  out  for  those  people  who 
need  the  protection  of  the  State.  At  luncheon  I  made  the  remark 
to  Dr.  Neill  that  we  are  very  apt  to  say  we  must  protect  infant 
industries  by  the  tariff.  Why  not  protect  the  infant  manufacturer, 
who  needs  protection  much  more,  by  doing  nothing  else  than  be 
conservative  in  our  new  enactment? 

Now  it  has  been  stated  with  great  truth  that  during  the  two  weeks 
of  waiting  period  the  injured  workman  contributes, — and  I  con- 
cede the  force  of  this  argument, — but  I  also  submit  whether  it  would 
not  be  one  of  the  early  steps  to  reduce  the  waiting  period  from  two 
weeks  to  one  week.     Then  the  contribution  would  become  very 


169 

small,  and  the  load  on  the  other  side  so  much  larger.  When  you 
have  once  accepted  the  plan  of  non-contribution,  you  cannot  go 
back  to  the  principle  of  contribution;  but,  if  you  accept  the  prin- 
ciple of  contribution,  at  the  beginning  even  less  than  one-half  on 
the  part  of  the  employee,  you  can,  under  proper  conditions,  later 
on  eUminate  the  contribution  and  come  to  the  non-contribution 
plan.     I  want  evolution  in  this  legislation  rather  than  revolution. 

Mr.  Smith  has  said  that,  in  his  opinion  there  are  many  workmen 
who  are  perfectly  satisfied  to  contribute,  and  admit  the  justice  of 
it.  We  do  not  know  if  they  are  or  if  they  are  not.  It  has  been 
said  that  the  unorganized  employees  are  not  heard.  It  is  true 
they  are  not  heard.  We  do  not  know  if  all  workmen  who  are  in 
labor  unions  are  absolutely  opposed  to  the  contributory  plan. 
They  have  not  been  examined.  It  has  not  been  put  to  them  in 
the  light  of  all  the  arguments  that  have  been  brought  up  against 
contribution.  But  we  know  this,  and  if  you  read  the  report  of  Dr. 
Neill,  brought  out  last  year,  you  will  find  there  are  untold  thou- 
sands of  employees  in  so-called  mutual  benefit  associations.  In 
mighty  few  cases  is  the  whole  expense  borne  by  the  employer: 
in  more  cases  the  whole  expense  is  borne  by  the  employees;  and 
in  a  majority  of  cases  the  expense  is  borne  jointly,  so  that  thou- 
sands and  thousands  of  workingmen  have  committed  themselves 
to  the  contributory  plan  and  see  the  justice  of  it. 

Mr.  Gillette:  I  would  like  to  move  you,  as  an  amendment 
to  the  pending  motion, — the  pending  motion  being,  as  I  under- 
stand, that  the  answer  to  this  question  be  yes, — ^to  add  the  words, 
''but  only  when  the  employer  shall  provide  insurance  which  shall 
guarantee  the  benefits  of  the  compensation  act  to  the  injured 
employee."  In  other  words,  that  a  small  employer  who  does 
not  insure,  and  therefore  does  not  protect  the  workingman  by 
insurance  against  his  own  insolvency  and  otherwise,  then  he  shall 
not  be  able  to  have  any  contribution,  but,  if  he  does,  then  he  may 
exact  a  small  contribution  from  the  employee. 

Mr.  Rohr:  Mr.  Chairman,  I  am  opposed  to  the  amendment, 
more  particularly  for  the  reason  that  the  voluntary  societies  have 
worked,  according  to  my  twenty-six  or  thirty  years'  experience 
in  a  hard  world,  a  hardship  on  the  men.  Some  men  are  forced 
by  the  conditions  of  their  employment  to  become  members  of 
these  mutual  aid  societies.  They  may  contribute  for  a  week  or  a 
month,  take  advantage  of  all  of  the  things,  and  they  are  immedi- 
ately dropped  and  lose  all  they  pay  in.     I  am  opposed  to  that. 


170 

Mr.  Gillette:  Under  the  scheme  which  I  propose,  it  will 
be  this.  Say  a  man  works  for  one  man  to-day  and  another  man 
to-morrow.  To  avoid  the  suggestion  which  Mr.  McEwen  made 
this  morning,  by  which  he  may  have  to  pay  half  a  dozen  times  in 
one  month,  now  he  would  only  pay  his  percentage  on  his  wages, 
so  that  he  would  pay  no  more  if  he  worked  for  twenty-five  em- 
ployers in  one  month  than  he  would  pay  if  he  worked  for  only  one 
employer  for  twenty-five  days  of  one  month. 

Mr.  Wigmore:  How  about  the  mutual  pa3maents  he  has  paid 
already  to  the  aid  societies? 

Mr.  Gillette:  That  question  is  very  easily  answered.  If 
you  are  going  to  put  in  the  Compensation  Act  a  provision  such  as 
is  put  in  many  accident  insurance  policies  or  fire  insurance  policies, 
by  which  the  Compensation  Act  should  become  a  coinsurer  with 
other  forms  of  benevolence,  and  thus  restrict  the  benefits,  then 
you  can  see  how  it  is  done;  but,  if  he  pays  for  two  forms  of  benefit, 
he  gets  two  forms  of  benefit. 

Mr.  Bailey:  Suppose  that,  after  working  six  months  and  pay- 
ing his  proportion  of  his  wages,  he  is  finally  injured  when  he  is 
working  for  a  man  who  is  not  insured. 

Mr.  Gillette:  That  is  why,  I  say,  we  should  encourage  the 
insurance.  The  practical  result  of  that  would  be,  in  my  opinion, 
to  make  every  employer  insure.  I  do  not  believe  any  employer 
outside  of  a  large  corporation,  such  as  the  Steel  Corporation  and 
the  railroads,  which  can  afford  to  carry  their  own  risks,  can  afford 
not  to  insure. 

The  Chairman:  Let  me  have  one  word  on  that.  I  went  to 
Paris  with  a  letter  to  Morgan  &  Company,  so  that  I  could  see  what 
effect  they  thought  their  law  had  on  the  financial  risk,  having  let- 
ters to  labor  men  and  so  forth,  and  the  member  of  the  firm  with 
whom  I  talked  immediately  said  it  had  no  effect  on  their  industries, 
although  it  would  on  ours ;  that  is,  on  the  financial  risks,  because 
they  do  business  on  an  acceptance  system  entirely.  They  do  not 
sell  bills  of  goods  on  credit  to  some  fellow  without  taking  his 
acceptance.  They  do  not  have  open  accounts.  They  do  not  give 
lines  of  credit  in  their  banks,  as  we  do.  So  he  said  it  would  not 
affect  them  over  there,  but  he  was  sure  it  would  affect  us  over  here; 
that  is,  on  the  financial  standing  of  the  employer,  if  he  did  not 
carry  insurance. 

Mr.  Howard:  Mr.  Chairman,  before  you  vote,  I  would  like 
to  say  something  about  one  of  Mr.  Alexander's  statements.    He 


171 

believes  that  the  American  workingman  has  a  natural  tendency 
to  do  the  opposite  thing  from  what  he  is  told  to  do — 

Mr.  Alexander:  I  didn't  say  the  American  workingman.  I 
said  the  Americans  as  a  whole. 

Mr.  Howard:  My  experience  with  the  American  workingman 
certainly  does  not  bear  that  out,  so  far  as  our  small  industry  is 
concerned.  I  should  be  very  much  interested  to  know  what  Mr. 
Dickson's  opinion  is  regarding  that,  with  his  large  experience.  It 
will  be  extremely  interesting.  But  I  would  say  one  other  thing, 
that,  particularly  in  the  hazardous  employments,  a  large  portion 
of  the  workingmen  are  men  who  were  brought  up  under  the  army 
training  system,  on  the  other  side,  and  certainly  it  is  not  to 
be  supposed  that  in  coming  over  here  they  abandon  all  their 
early  training  and  habits. 

The  Chairman:   Any  further  remarks? 

Mr.  Alexander:  If  we  had  retained  the  doctrine  of  fault,  a 
great  many  of  the  arguments  that  are  brought  up  here  for  a  non- 
contributory  scheme  would  hold  true.  But,  inasmuch  as  it  has 
been  the  tendency  to  eliminate  the  doctrine  of  fault,  is  it  not  fair 
and  just,  I  submit,  that  the  employee  should  not  bear  a  part  of 
the  burden  of  this  whole  insurance,  and  we  ought  not  to  raise  the 
question,  which  has  been  raised,  How  much  more  will  he  be  careful 
for  six  cents  a  week?  That  is  not  the  proposition.  The  question 
is.  In  what  frame  of  mind  will  we  put  him?  In  what  way  will  we 
train  that  man?  If  we  admit,  as  has  been  stated  here  several 
times,  and  many  of  us  believe,  that  eventually  we  shall  have  to 
come  to  social  insurance  methods,  not  only  against  accidents  in 
the  plant,  but  also  accidents  outside,  sickness,  and  so  forth,  should 
we  not  accept  the  contribution  plan,  as  a  matter  of  educating 
every  man  in  America  employed  in  work,  to  this  greater  and  final 
proposition,  so  that  he  may  take  an  inteUigent  interest  in  it, 
beyond  six  cents  per  week,  by  watching  his  fellow-man? 

The  Chairman:  I  don't  want  to  prolong  this  discussion.  I 
simply  want  to  say  the  argument  as  made  in  the  beginning  was 
directed  entirely  to  the  condition  that  the  fund  be  insured. 

Mr.  Wigmore  :  May  I  ask  you  to  say  whether  you  do  accept 
the  fact  that  for  two  weeks  and  for  fifty  per  cent,  for  six  years, 
and  for  everything  after  six  years,  the  employee  does  contribute? 

Mr.  Alexander:  I  accept  it  for  one  week.  I  don't  accept  it 
in  the  other  respects,  because  whenever  the  employee  is  injured 
through  no  fault  of  his  own,  through  the  fault  of  the  employer  or 


172 

through  a  trade  risk,  then  he  actually  contributes  in  accepting  a 
reduced  wage  during  the  time  when  he  is  forced  by  somebody  else 
to  be  idle.  But,  whenever  he  is  idle  through  his  own  fault,  he  does 
not  contribute  by  accepting  half- wages  where  he  should  by  rights 
get  no  wages,  because  it  was  in  his  own  hand  then  tuo  continue  in 
employment  by  being  careful  or  to  put  himself  out  of  emplojonent 
by  being  careless. 

Mr.  Boyd:  I  can  get  some  figures  to  sharpen  this  point  Mr. 
Gillette  raised.  In  1887  there  were  106,000  accidents  in  Ger- 
many; 15,970  of  those  lasted  longer  than  thirteen  weeks;  in  twenty- 
four  and  a  half  per  cent,  of  those  the  negligence  was  attributable 
to  the  employee;  19.76  were  attributable  to  negligence  of  employer; 
and  fifty-four  and  a  half  were  attributable  to  the  inherent  danger 
of  the  industry  and  the  combined  negligence  of  employee  and 
employer.  You  find  that  in  the  fourth  special  report  of  the  Com- 
missioner of  Labor. 

Mr.  Doten:  Mr.  Chairman,  it  seems  to  me  that  it  is  very  de- 
sirable that  we  should  understand  each  other's  position  on  this 
matter.  Now  we  have  two  members  of  the  Minnesota  Com- 
mission contending  for  the  same  thing,  but  upon  different  grounds. 
Our  chairman  contends  for  it  upon  the  ground  that  by  reason 
of  it  we  shall  be  able  to  compensate  the  laborer  more  generously, 
and  that  we  are  going  to  add  to  the  compensation  which  we  have 
already  adopted  as  a  rule  a  sufficient  amount  to  warrant  the  tax- 
ing of  some  cost  upon  the  laborer.  If  his  contention  is  right,  then 
Mr.  Gillette's  contention  that  we  cannot  put  a  bill  of  this  sort  into 
operation  unless  we  put  part  of  the  tax  upon  the  laborer  is  entirely 
unfounded  unless  Mr.  Gillette  has  in  mind  the  reduction  of  the 
amount  that  we  have  already  agreed  upon  as  the  basis  of  our  bill. 
Those  two  positions  seem  to  me  to  be  antagonistic  fundamentally. 
Now,  Mr.  Gillette,  I  would  like  to  ask  if  you  have  in  mind  in- 
sisting upon  this  contribution  without  this  additional  compensa- 
tion which  Mr.  Mercer  has  suggested  as  a  quid  pro  quo? 

Mr.  Gillette:  I  am  very  glad  the  question  is  raised,  and  I 
think  you  are  absolutely  correct  that  the  positions  are  not  ab- 
solutely in  harmony.  I  wish  to  say  that  I  have  been  hoping  that 
I  could  see  my  way  to  agree  with  Mr.  Mercer.  In  other  words, 
if  you  were  going  to  put  on — if  you  were  going  to  make  your 
scale  of  benefits  fifty  per  cent.,  you  could  make  it,  say,  sixty  per 
cent,  and  let  the  employees  contribute  that  extra  sixteen  and  two- 
thirds  per  cent.     I  have  been  trying  to  work  that  out,  but  I  tell 


173 

you,  gentlemen,  that  the  thing  that  I  have  been  confronted  with 
is  that  the  cloth  won't  reach;  and  I  don't  see  how — ^why,  I  sat 
around  the  table  in  Perth,  Scotland,  because  I  was  refused  practi- 
cally all  the  information  by  the  companies  in  London,  the  com- 
panies belonging  to  the  tariff,  but  Mr.  McEwen  and  I  went  up  to 
Perth,  and  we  sat  there  with  the  General  Accident  Company,  and 
sat  around  the  table,  and  they  brought  in  their  actuaries  and  ex- 
perts, and  we  spent  half  a  day  with  them,  and  the  very  best  esti- 
mate that  we  can  get  is  that  an  act  based  practically,  as  has  been 
outlined  here  to-day,  upon  a  contribution  of  twenty  per  cent,  by 
the  workingmen,  will  cost  double  what  the  present  liabiHty  is 
costing  in  this  country,  and  if  a  double  liability  should  be 
retained,  it  would  add  twenty-five  per  cent,  still  to  that  cost. 

Mr.  Sanborn:  Now,  on  Mr.  Gillette's  principle,  I  just  have 
this  suggestion.  Rather  than  to  put  a  wrong  principle,  let  us 
reduce  the  amount  until  we  know  that  the  manufacturers  can  bear 
it,  and  then  start  it  on  a  lower  amount,  and  then  if  the  manufact- 
urer can  pay  more,  it  is  easy  enough  to  raise  that  amount  on  the 
figures  that  are  furnished. 

Mr.  Dickson  :  I  came  into  the  Conference,  gentlemen,  with  an 
open  mind  on  this  particular  topic,  leaning,  however,  to  the  feel- 
ing that  there  should  be  no  contribution  whatever  on  the  part 
of  the  employee,  because  the  tentative  plan  under  which  the  cor- 
poration with  which  I  am  connected  is  now  working  has  that 
provision, — that  there  shall  be  no  contribution  by  the  employee. 
I  am  ready,  however,  now  to  vote  in  the  negative:  first,  because 
I  believe  that  the  workman  now  does  contribute  in  suffering,  in 
loss  of  wages,  and  in  the  possibility  of  permanently  impaired 
earning  power;  second,  because  the  amount  which  it  would  be 
proposed  to  have  him  contribute  would  be  too  small  to  affect  his 
motives,  his  conduct,  or  the  working  conditions;  third,  on  account 
of  the  shifting  nature  of  employment,  casual  employment,  and 
the  general  impracticability  of  administering  any  system  of 
workmen's  contributions.  I  should  say  that,  if  any  system  of 
compulsory  State  insurance  can  be  constitutionally  enacted,  I 
might  modify  my  views  on  this  subject. 

The  question  was  called  for. 

The  Chairman  :  All  in  favor  of  the  question  on  the  amendment, 
which  is  to  amend  the  motion  so  that  it  will  read,  to  answer  ques- 
tion number  8,  ''yes,  provided  the  employer  elects  to  take  out 
insurance," — so  you  first  vote  whether  you  would  put  the  in- 
surance feature  into  the  question.     Are  you  ready  for  the  question? 


174 

The  question  was  then  put,  and  the  motion  lost  by  the  follow- 
ing vote:   ayes,  six;   noes,  twelve. 

The  Chairman:  All  in  favor  of  the  original  motion  to  answer 
this  in  the  affirmative,  namely,  that  employees  shall  contribute 
to  this  fund,  please  rise. 

The  motion  was  lost,  only  one  voting  aye. 

The  Chairman:  It  is  almost  unanimous,  so  that  answers  that 
question. 

There  is  a  report  to  make  on  number  5. 

Mr.  Saunders:  A  majority  of  the  committee  submit  another 
report.  We  make  no  change  in  the  permanent  disability  from 
the  previous  report  on  which  the  Conference  voted. 

In  case  of  death,  first,  where  the  employee  deceased  leaves 
orphans,  fifty  per  cent.;  where  the  deceased  employee  leaves  a 
widow  and  no  children,  twenty-five  per  cent. ;  where  the  deceased 
leaves  a  widow  and  one  child,  the  child  to  receive  fifteen  per  cent., 
or  the  widow's  share  to  be  increased  by  fifteen  per  cent.;  two 
children,  twenty  per  cent.;  three  children,  twenty-five  per  cent.; 
four  children,  thirty  per  cent.;  five  children,  thirty-five  per  cent. 
Those  being  children  under  sixteen,  and  these  percentages  to  be 
paid  during  the  period  that  they  remain  under  sixteen  years  of 
age.  The  maximum  is  sixty  per  cent,  with  the  widow  and  five 
or  more  children. 

In  case  where  there  is  a  widow  and  no  children,  and  a  de- 
pendent father  or  mother,  the  dependent  father  or  mother  to 
receive  twenty-five  per  cent.     That  makes  fifty  in  that  case. 

The  payments  to  be  sixty-six  and  two-thirds  per  cent,  on  the 
first  seven  dollars  and  a  half  of  weekly  wages,  and  fifty  per  cent, 
on  the  excess  of  wages,  with  a  maximum  of  ten  dollars  per  week 
for  three  hundred  weeks. 

Mr.  Winans:  I  have  no  minority  report.  I  wish  to  say  I  re- 
fused to  sign  the  majority  report,  and  shall  vote  against  its  adop- 
tion on  account  of  the  figures  being  entirely  too  low. 

Mr.  Schutz  :  I  move  the  report  be  adopted. 

Mr.  Howard:  I  would  like  to  amend  that  by  moving  the  re- 
port be  adopted  in  principle,  without  declaring  in  favor  of  any 
specific  figures. 

Mr.  Dickson:  Are  you  making  a  distinction  between  the  pay- 
ment for  death  and  that  for  total  disability? 

Mr.  Saunders  :  The  total  is  the  same,  the  maximum  and  mini- 
mum are  the  same. 


175 

The  Chairman:  The  amendment  is  to  adopt  the  principle  of 
this  report  without  committing  ourselves  to  the  percentages. 

Mr.  Doten:  I  would  suggest  that  the  way  this  is  put  by  the 
committee  report  leads  to  rather  serious  compUcations,  when  you 
come  to  analyze  it.  It  would  be  very  much  better  to  have  your 
basis — your  percentage  basis  of  the  total  amount  going  to  depend- 
ants the  same  as  under  permanent  disability,  and  then,  in  case 
of  the  widow,  have  her  receive  fifty  per  cent,  of  the  total  benefit, 
and  in  the  case  of  a  child  or  children,  eighty  per  cent.,  etc.,  putting 
the  percentage  upon  the  possible  amount  payable  under  the  pro- 
vision instead  of  confusing  the  matter  by  in  one  case  talking  about 
forty  per  cent,  of  the  employee's  wages,  and  in  another  case 
about  sixty-six  and  two-thirds  per  cent.,  and  so  forth.  You  are 
getting  your  percentages  all  tied  up  in  a  knot,  as  the  matter  now 
stands. 

Mr.  McEwen  :  Somebody  has  said  that  fair  and  free  discussion 
is  the  foremost  friend  of  truth.  Now  let  us  put  ourselves  in  the 
place  of  a  workingman  with  a  provision  like  this  in  the  law.  I 
do  not  know  but  I  may  ultimately  come  to  it.  I  remember  it  in 
France.  It  did  not  appeal  to  me  very  strongly,  but,  if  we  adopt 
the  principle  that  the  laborer  shall  not  contribute  anything  and  the 
industry  bear  it  all,  I  recognize  as  a  matter  of  expediency  that  we 
have  got  to  be  able  to  make  some  monetary  sacrifice  until  other 
States  catch  up.  If  the  principle  is  once  established,  it  can  be 
developed,  and  the  compensations  increased  to  mete  out  exact 
justice.  In  a  great  many  large  corporations,  men  make  written 
application  for  employment  to-day.  Suppose  an  application 
should  read  like  this  ''Are  you  married?  Is  your  wife  living?  Is 
your  father  or  mother  living?  Do  you  contribute  to  their  support? 
How  many  children  have  you?"  Would  this  situation  arise? 
Here  is  another  man  who  applies  that  has  a  wife,  but  no  children^ 
Wouldn't  that  enhance  his  chance  for  employment  at  the  expense 
of  a  man  with  a  large  family? 

The  Chairman  :  Are  you  ready  for  the  question?  All  in  favor 
of  the  amendment,  signify, — ^that  is,  that  we  adopt  the  principle 
of  this  report  without  committing  ourselves  to  the  figures. 

Mr.  Alexander:  State  the  principle. 

The  Chairman:  The  principle,  as  I  understand  it,  is  to  work 
out  the  percentage  somewhere  on  the  basis  of  the  number  of  chil- 
dren but  not  wholly. 

Mr.  Saunders:  The  only  value  in  the  percentage  basis  is  that 


176 

the  figures  are  right.  If  they  are  not  right,  the  whole  thing  is 
wrong.  I  failed  to  agree  to  this  until  I  got  Mr.  Gillette  to  come  up 
to  thirty-five  per  cent.,  for  the  five  children  or  more,  making  a 
maximum  of  sixty  per  cent. 

Mr.  Gillette:  This  is  suggested  by  what  Mr.  McEwen  said 
yesterday.  I  don't  think  it  would  cost  more.  I  think  it  would 
be  a  more  equitable  distribution. 

The  Chairman  :  All  in  favor  of  the  amendment,  let  it  be  known 
by  saying  aye. 

The  motion  was  lost. 

The  Chairman:  All  in  favor  of  the  original  report,  adoption 
of  the  original  report  read  by  Mr.  Saunders. 

Mr.  Doten:  Mr.  Chairman,  I  insist  you  have  an  inconsistent 
proposition.  We  have  adopted  a  basis  of  fifty  per  cent,  and  a 
maximum  of  ten  dollars  a  week,  and  here  you  bring  in  a  pro- 
vision which  in  some  cases  brings  it  up  to  sixty  per  cent. 

The  Chairman:  That  is  conceded,  in  case  of  death. 

Mr.  Saunders:  But  it  does  not  increase  the  ten  dollars  a 
week. 

Mr.  Doten:  I  don't  see  any  reason  why  that  should  not  be 
put  on  the  other  basis,  and  apply  your  percentage  to  the  funda- 
mental percentage  of  the  wage  and  distribute  it  on  that  basis. 

Mr.  Dickson:  Have  you  now  a  permanent  basis  for  total  dis- 
ability different  from  that  for  death? 

Mr.  Saunders:  The  percentages  are  different.  Your  minimmn 
and  maximum  are  the  same. 

Mr.  Dickson  :  Why  should  it  be  any  different? 

Mr.  Saunders:  There  should  be  a  difference  between  a  man 
totally  disabled  who  has  a  wife  and  that  is  all  the  family,  where 
they  both  have  to  be  supported,  and  the  case  where  the  man  is 
dead  and  he  leaves  only  a  widow. 

Mr.  Dickson:  Your  present  discrimination  is  in  favor  of  the 
man  who  is  yet  living. 

Mr.  Saunders:  Yes,  except  in  one  case,  where  the  widow  has 
five  children  or  more.  Then  she  gets  sixty  per  cent.  If  the  em- 
ployee leaves  dependants  only  partly  dependent  on  his  earnings 
at  the  time  of  his  death,  the  employer  shall  pay  such  dependants 
a  weekly  compensation  equal  to  the  same  proportion  of  the  weekly 
payments  for  the  benefit  of  the  persons  wholly  dependent  as  the 
amount  contributed  to  the  said  persons  dependent  bears  to  the 
annual   earnings  of  the  deceased  at  the  time  of  his  injury,  and 


177 

in  no  case  shall  the  period  covered  by  such  compensation  be 
greater  than  three  hundred  weeks  from  the  date  of  the  accident. 

Mr.  Lowell:   I  second  the  motion. 

The  question  was  then  called  for,  and  the  motion  prevailed. 

Number  9.    Shall  it  be  Permissible  for  Employers   to 
substitute  voluntary  schemes? 

The  Chairman:  We  will  consider  it  has  been  moved,  unless 
there  is  objection,  and  proceed  to  discuss  it.  Any  one  have  any- 
thing to  say  on  the  question? 

Mr.  Bailey:  It  seems  to  me  there  is  a  good  deal  that  ought  to 
be  said  on  this  question.  It  has  been  suggested  in  the  previous 
discussion  here  to-day  that  the  aged  workman  is  going  to  be  at 
a  disadvantage.  That  has  been  suggested  in  England  as  one  of 
the  troubles  which  they  experience  over  there.  A  man  comes  in, 
and  he  fills  out  his  application  as  suggested,  and  he  is  fifty-five, 
and  the  employer  turns  him  away  because  he  will  be  likely  to  have 
to  pay  a  good  deal  under  the  compensation  law.  It  has  been 
suggested  there  that  in  case  of  those  workmen  it  is  not  for  their 
interest  or  the  interest  of  the  body  of  workmen  or  the  interest  of 
society  that  they  should  not  have  a  chance  to  work.  They  can 
do  as  much  work  perhaps  as  they  ever  did,  but  there  is  still  an 
increased  chance  of  their  getting  hurt,  and  it  was  suggested  over 
there  by  Mr.  Hill  that  the  English  scheme  ought  to  be  supple- 
mented by  extending  the  contracting  out  principle  in  favor  of 
those  workmen,  but  to  have  it  in  some  way  regulated,  so  that  they 
won't  be  imposed  upon,  they  won't  lose  all  chance  of  compensa- 
tion if  they  get  injured,  but  that  there  may  be  some  power  that 
would  approve  the  contracting  out  scheme.  I  am  told  that  not 
simply  half  a  million,  but  perhaps  many  more  than  that  of  em- 
ployees at  the  present  time  in  the  United  States  are  working 
under  these  voluntary  arrangements  for  voluntary  relief,  and 
they  are  getting  a  good  deal  of  benefit  from  it.  Now,  if  those  vol- 
untary schemes  are  giving  the  workmen  as  much  relief  substan- 
tially as  he  will  get  under  this,  then  there  is  no  objection  to  them. 

I  think  we  should  encourage  the  voluntary  scheme,  where  they 
are  good  schemes,  where  they  give  the  workingmen  something 
substantially  equivalent  to  the  Compensation  Act.  So  that  I 
am  in  favor  of  allowing  voluntary  schemes  which  are  approved — 
I  think  they  should  be  approved  by  a  disinterested  person — and 


178 

not  less  favorable  in  substance  than  the  Compensation  Act.  I 
believe  that. 

The  Chairman:  What  is  it  you  move? 

Mr.  Bailey:  I  move  that  number  9  be  answered,  "Yes, 
providing  such  voluntary  scheme  is  approved  by  some  public 
body  or  official  having  charge  of  the  operation  of  the  law." 

Mr.  Rohr:    I  second  the  motion. 

Mr.  Lowell:  Mr.  Chairman,  I  am  rather  at  sea  on  this  ques- 
tion, whether  it  shall  be  adopted  or  not,  and  it  affects  the  people 
over  whom  I  have  constituted  myself  a  special  guardian ;  namely, 
the  small  employer.  This  is  the  thing  as  it  Hes  in  my  mind.  This 
kind  of  a  voluntary  scheme  will  be  very  good  for  the  employer  and 
for  the  employee  in  very  many  cases.  It  is  working  now  in  many 
cases,  but  it  can  only  be  adopted  by  employments  or  employers 
who  have  a  considerable  number  of  employees  in  their  employ. 
The  people  who  have  adopted  it  so  far  have  a  tremendous  number 
of  employees,  like  the  Harvester  Company,  the  General  Electric 
Company,  the  Steel  Company,  and  so  forth.  What  I  am  afraid 
of  is  this,  if  you  go  into  this  thing,  you  may  be  legislating  against 
the  small  employer.  I  am  not  entirely  satisfied  in  my  own  mind 
whether  you  will  be  or  not,  but  you  take  the  employer  in  indus- 
tries in  Massachusetts,  who  have,  say,  not  more  than  fifty  em- 
ployees, in  their  concerns.  Those  people  cannot  adopt  any  such 
scheme  as  this,  because  it  depends  for  its  successful  financial 
operation  on  quite  a  large  fund,  and  the  man  having  only  fifty 
or  less — if  he  has  less,  it  is  even  more  so — cannot  get  a  sufficient 
fund  to  run  it,  because  of  course  every  death  or  every  permanent 
disability  will  make  large  inroads  on  the  fund.  Now  it  seems 
to  me  that  we  ought  to  consider  pretty  carefully  whether  we  should 
put  that  in  our  compensation  laws.  Is  it  better  to  face  the  situa- 
tion,— refuse  this  scheme  and  have  everybody  on  the  same  dead 
level,  in  order  to  help  the  small  employer  and  not  drive  him  out 
of  the  business?  Or  is  it  better,  as  the  other  alternative,  to  allow 
this,  and  thereby  legislate  merely  against  the  small  employer? 
It  seems  to  me  that  that  is  your  dilemma.  On  the  one  hand,  you 
give  a  chance  for  this  thing  which  will  act,  very  likely,  beneficially, 
but  in  doing  that  you  may  be  legislating  against  the  small  em- 
ployer. 

Mr.  McEwen  :  How  does  it  legislate  against  the  small  employer? 

Mr.  Lowell:  Because  the  small  employer  cannot  get  a  suffi- 
cient fund  from  the  employees  in  his  own  work  to  carry  it  on  as 
a  financial  matter. 


179 

Mr.  McEwen:  But  he  does  not  have  to  go  into  it.  It  is  not 
compulsory. 

Mr.  Lowell  :  No.  Then  you  come  to  this,  that,  if  he  does  not 
go  into  it,  then  the  large  employer  of  labor  has  a  very  great  ad- 
vantage over  the  small  employer  of  labor  by  the  great  ease  with 
which  he  gets  labor, — that  is  where  it  hits  against  the  small  manu- 
facturer. Of  course,  the  obvious  suggestion  will  be  made  at  once 
that  small  employers  must  band  together  in  order  to  do  that,  in 
order  to  obviate  that  trouble.  I  am  not  at  all  sure  that  it  would 
work  out  that  way,  and  that  is  really  the  dilemma  that  is  troubling 
me. 

The  Chairman:  I  simply  want  to  suggest  that,  so  far  as  my 
personal  views  are  concerned,  I  understand  that  the  fundamental 
reason  for  all  this  legislation  is  that  in  dangerous  employruents 
the  employer  and  employee  do  not  stand  on  an  equality  as  to 
ability  to  contract  respecting  the  danger.  Therefore,  I  should 
be  definitely  opposed  to  any  scheme  which  gave  the  privilege  to  the 
employer  and  employee  to  get  together  and  contract  out  of  the 
law. 

As  to  the  amendment  which  is  made  by  Mr.  Dickson,  I  should 
be  opposed  to  that,  as  we  have  had  the  same  thing  declared  uncon- 
stitutional in  our  State,  where  they  gave  the  power  to  the  Fire 
Insurance  Commissioner  to  approve  the  form  of  pohcy  that  should 
be  made,  and  the  court  declared  it  unconstitutional.  It  would 
not  do  me  any  good. 

Mr.  Alexander  :  The  small  employers  may  not  only  successfully 
band  together  in  mutual  associations  for  such  purpose,  but,  as  a 
matter  of  fact,  they  are  doing  it  now  in  many  respects.  Second, 
these  inequalities,  which  Mr.  Lowell  is  afraid  may  arise,  exist  now. 
The  Steel  Corporation  offers  its  people,  free  of  charge,  old  age  pen- 
sions, and  Mr.  Smith  has  not  yet  offered  his  five  people  old  age 
pensions.  Nevertheless,  he  is  getting  his  men.  You  will  also 
find  there  is  an  inequality  in  wages  that  offsets  that.  As  a  general 
thing,  I  beheve  the  smaller  employer  pays  somewhat  larger  wages, 
and  in  that  way  gets  employees  readily.  I  think  we  ought  to 
permit  under  proper  safeguards, — I  would  vote  against  it  if  there 
were  no  proper  safeguards, — we  ought  to  permit  the  employer 
and  employees  to  contract  out,  and  accept  a  scheme  which  is  at 
least  as  advantageous  as  the  one  adopted  by  the  State. 

Mr.  Wainwright:  Is  not  Mr.  Dickson's  motion  deficient  in 
just  that  particular,  that  it  simply  provides  for  voluntary  agree- 


180 

ments  that  are  approved  by  some  authority,  but  does  not  con- 
tain the  provision  that  they  must  be  at  least  as  good  as  that  offered 
by  the  law  itself? 

Mr.  Dickson  :  I  understand,  of  course,  a  public  official  would 
not  agree  to  it,  unless  in  his  judgment  it  was  as  good. 

Mr.  Wainwright:  That  does  not  always  follow. 

Mr.  Browne:  It  seems  to  me  you  must  have  somewhere  in  the 
Act  for  the  liberty  of  contract  some  conditions  which  will  be  plastic. 
You  may  frame  an  Act  which  cannot  meet  all  conditions. 

The  Chairman:  Any  further  argument  on  the  amendment? 
All  in  favor  let  it  be  known  by  saying  aye. 

The  motion  prevailed. 

The  Chairman  :  All  in  favor  of  the  motion  as  amended  say  aye. 

Motion  prevailed. 

Number  10.     Method  of  Determination  of  Controversies? 

The  Chairman:  Now  the  method  of  determining  controver- 
sies is  the  next  number,  which  is  number  10. 

Mr.  Bailey  :  I  would  make  the  motion  on  that,  Mr.  Chairman, 
and  I  would  make  it  rather  broad.  My  idea  is  that  controversies 
shall  be  determined  by  a  disinterested  competent  public  official. 

Now  the  English  law,  I  understand,  does  not  work  very  well 
in  that  way.  They  have  something  they  call  an  arbitrator,  and 
they  have  a  committee,  and  they  then  can  go  up  to  the  court,  and 
there  are  pages  of  rules,  and  the  thing  is  pretty  complicated. 

Now  the  New  York  law,  on  the  other  hand,  practically  puts 
every  case  into  court.  I  won't  say  that,  but  there  is  a  right  of 
jury  trial,  and  that  means  expense  and  delay — 

Mr.  Wainwright:   Say,  rather,  leaves  it. 

Mr.  Bailey:  Yes,  leaves.  Now  I  have  given  this  scheme 
some  thought.  I  think  you  can  get  rid  of  the  jury  trial,  and  I 
think  you  can  do  it  constitutionally,  and  I  think,  if  you  read  Pro- 
fessor Williston's  brief,  you  will  be  satisfied  you  can  make  reme- 
dies which  are  given  by  this  act  equitable  remedies. 

We  have  worked  out  in  Massachusetts  in  the  last  ten  years 
the  doctrine  that  you  can  dispense  with  jury  trial  and  deprive 
parties  of  jury  trial,  not  only  the  plaintiff,  but  the  defendant 
provided  the  matter  is  properly  on  the  equity  side  of  the  court, 
and  to  illustrate: — 

I  make  a  promissory  note.     Ordinarily,  if  I  could  sue  on  that 


181 

and  collect  it,  I  would  have  to  sue  on  the  common  law  side  of  the 
court;  but,  if  I  want  to  collect  that  by  means  of  an  equitable 
attachment,  that  is  to  reach  the  property  which  cannot  be  reached 
by  law  but  can  be  reached  in  equity,  then  I  file  my  petition  or 
bill  in  equity,  and  I  not  only  lose  my  right  of  jury,  but  the  de- 
fendant has  got  to  have  his  rights  tried  on  the  equity  side  of  the 
court  without  any  right  to  a  jury. 

He  may  ask  for  a  jury,  he  may  possibly  get  it,  but  ordinarily 
he  does  not  in  Massachusetts,  and  in  most  of  the  States  that  same 
thing  is  being  done,  that  is  where  the  case  is  properly  on  the 
equity  side  of  the  court;  and  you  can  get  rid  of  a  jury. 

Now  I  think  that  that  is  something  which  is  worth  while. 
That  is  not  in  the  New  York  law,  and  I  think  we  can  get  it  in 
here  if  we  have  an  official  who  has  got  equity  powers. 

Now,  as  we  have  been  talking  here  yesterday  and  to-day, 
there  were  various  things  which  required  the  use  of  discretion. 
The  apportionment  among  the  partially  dependent  needs  discre- 
tion, also  the  revising  of  the  award  from  time  to  time,  where  the 
man  is  partially  disabled  and  is  improving. 

The  law  will  provide,  I  think,  that  there  may  be  an  apphcation 
by  either  side  for  revision,  for  increase  or  diminution.  That 
requires  equity  power  that  you  don't  have  in  the  New  York  law. 
I  think  that  law  is  very  much  hampered  by  the  fact  that  you  have 
not  got  a  tribunal  with  equity  powers  that  can  do  that,  just  the 
same  thing  as  the  probate  judge  is  doing  with  regard  to  alimony, 
by  putting  it  up  and  down,  as  need  be. 

Now  it  fairly  belongs,  I  think,  on  the  equity  side  of  the  court. 
Any  court  with  equity  jurisdiction  can  do  it,  because  the  thing 
in  its  nature  has  certain  equitable  features  which  require  a  court 
with  equitable  powers  to  administer. 

Now,  if  I  am  right  about  that,  then  it  means  that  we  should  have 
in  any  event  an  official  who  has  equity  powers,  with  perhaps  the 
right  of  appeal.  I  think  that  we  should  make  the  thing  as  speedy 
as  possible  and  as  simple  as  possible,  and  we  have  been  talking 
here  to-day  more  or  less  about  an  arbitration  committee  or  a  judge. 
That  does  not  appeal  to  me,  because  it  means  one  side  appoints 
a  partisan,  and  the  other  side  another  partisan,  and  it  comes 
down  to  one  that  ought  to  be  impartial.  Perhaps  he  is,  perhaps 
he  is  not;  but  they  say  in  England,  you  want  a  man  not  only 
that  is  fairly  well  qualified  to  start  with,  but  who  is  capable  of 
learning  by  experience,  and  he  does  learn  and  he  administers 


182 

the  thing  with  some  equality.  He  confers  with  other  men  who 
are  administering  it,  so  that  you  get  a  fairly  equitable  adminis- 
tration of  the  law. 

Now,  if  you  have  a  Master  of  Chancery,  I  would  not  call  him 
that.  I  think  perhaps  adjuster  does  just  as  good  as  caUing  him 
the  Master  in  Chancery.  He  will  be  a  man  that  can  go  down  and 
see  the  workman,  if  need  be.  He  won't  be  tied  up  with  rules, 
won't  be  held  down  to  technical  rules  of  evidence.  It  may  be  he 
will  have  power  to  select  an  independent  doctor,  and  he  can  take 
him  down,  and  the  workman  will  go  to  him.  He  perhaps  puts 
in  his  claim  for  compensation  in  writing,  sends  it  to  the  employer, 
and  then  he  may  apply  to  the  adjuster,  or  Master  in  Chancery, 
who  will  have  large  equity  power,  whose  decision  will  in  most 
cases  be  final,  with  the  proper  right  of  revision  or  appeal  to  the 
equity  court;  but  you  get  rid  of  the  jury,  the  expense  of  a  jury 
trial. 

Of  course,  if  parties  agree  to  a  thing,  they  won't  need  to  trouble 
an  arbitrator  or  an  adjuster,  but  I  do  think  that,  in  order  to  avoid 
the  possibility  of  the  workman  being  imposed  upon,  any  settle- 
ments which  are  going  to  be  made  should  have  the  approval  of 
the  adjuster.  Otherwise,  you  will  have  the  lawyer  coming  in 
and  trying  to  get  more  than  he  ought  to.  I  think  the  adjuster 
might  do  as  they  do  in  New  York,  regulate  the  attorney's  fees, 
that  he  can't  have  more  than  is  reasonable.  Something  worked 
out  along  that  line  will  be  helpful,  I  am  sure  will  be  necessary, 
because,  if  you  don't  have  those  things,  you  are  not  giving  the 
public  what  they  have  been  led  to  expect;  namely,  something 
simple,  something  inexpensive,  something  speedy. 

Now  I  have  outlined  it  very  generally.  I  don't  know  as  I  have 
made  myself  very  clear,  but  my  main  point  is  getting  it  on  the 
equity  side  of  the  court.  Have  an  official  with  equity  powers  so 
as  to  get  rid  of  the  jury  trial,  and  then  have  one  official,  one  in 
each  county  or  State,  have  the  number  flexible,  according  to  the 
amount  of  business  to  be  done,  not  less  than  one  in  each  county. 

Mr.  Wainwright:  Just  to  take  up  a  moment,  of  course  our 
Commission  considered  this  matter  with  a  great  deal  of  care. 
The  advantages  to  be  secured  by  having  some  independent 
arbitrator,  of  course,  is  obvious,  would  not  need  any  discussion. 
I  may  say  this  was  the  subject  which  gave  our  Commission  more 
trouble  than  probably  any  other  subject  that  we  had  to  con- 
sider. 


183 

We  considered  practically  every  scheme  that  you  have  mentioned 
here,  and  maybe  we  ran  away  from  the  subject,  but  we  finally, 
with  the  time  at  our  disposal,  feeHng  we  wanted  to  make  a  report, 
considered  it  would  be  wiser,  in  view  of  the  other  defects  of  our 
act,  to  leave  them  as  they  are  in  the  court. 

Mr.  Saunders:  Some  of  us  have  given  this  quite  a  little 
thought  and  some  discussion,  and  we  have  come  to  the  same 
conclusions  as  Mr.  Bailey,  independently  of  him. 

It  seems  to  me  that  there  are  two  essentials  we  want  to  start 
out  with : — 

First,  the  settlement  of  controversies  between  employer  and  the 
employees  should  be  local,  should  be  brought  right  down  to  the 
locality  where  the  accident  happened,  and,  if  possible,  right  into 
the  same  plant  where  the  accident  happened. 

Second,  that  there  must  be  some  uniformity  in  the  decisions, 
else  a  man  injured  in  one  end  of  the  State  may  get  twice  what 
another  man  injured  in  the  other  end  would  get  for  exactly  the 
same  injury. 

Now  to  get  this  locality,  get  the  men  right  down  together, 
some  of  us  have  suggested  this: — 

That  there  be  for  each  individual  case  an  arbitration  board  or 
committee,  consisting  of  one  man  chosen  by  the  employer,  one 
man  chosen  by  the  employee,  and  a  third  man  who  is  a  State 
official, — you  can  call  him  a  judge  or  arbitrator  or  anything  you 
might  call  him.     He  is  permanent. 

Now  I  know  Mr.  Bailey  will  say,  and  many  others  will  say, 
that  the  man  chosen  by  the  employer  and  the  man  chosen  by  the 
employee  is  biassed,  and  that  you  might  as  well  leave  it  to  one  man; 
but  I  think  not,  because,  if  each  party  has  an  individual  in  that 
board  sitting  there,  he  is  sure  that,  when  they  go  out  and  discuss 
the  subject,  the  points  in  his  favor  are  going  to  be  brought  up  and 
they  are  going  to  be  given  a  hearing  inside  the  court  itself.  He 
is  also  going  to  know  when  they  get  through  not  merely  the  results, 
but  the  reasons  which  brought  that  board  to  their  decision.  Those 
two  things  are  going  to  largely  bring  him  to  a  sense  of  satisfaction, 
or  at  least  a  conclusion  that  he  has  got  as  good  as  he  could  get 
under  the  circumstances. 

Now  this  third  member  I  would  have  a  member  of  a  State  board. 
If  your  business  is  not  too  large,  let  him  be  one  man.  If  one  man 
cannot  do  it  and  three  men  can  do  it,  let  it  be  three  men.  If  you 
need  five,  why,  have  five.     Have  enough  men  to  do  this  business 


184 

in  the  State,  but  don't  have  it  by  counties  or  by  sections.  Have 
it  State-wide. 

The  Chairman:   Judicial  districts. 

Mr.  Saunders:  No,  not  judicial  districts.  Don't  divide  your 
State  at  all,  so  that  one  member  of  this  board  shall  sit  on  every 
case  that  is  settled  in  the  State.  Then  you  have  got  in  that  one 
board,  if  the  board  has  an  executive  officer  or  secretary, — ^you  have 
got  in  that  a  record  of  every  case  that  is  settled.  You  have  got 
in  there  members  who  sit  on  every  case,  who  discuss  the  cases 
and  keep  them  uniform. 

Now  it  has  been  suggested  that  we  have  a  system  that,  if  either 
party  wanted  to  arbitrate,  they  should  appoint  a  man  and  notify 
the  clerk  of  this  board,  who  should  immediately  notify  the  opposite 
party  that  the  other  had  requested  arbitration,  and,  if  within  six 
days  they  don't  appoint  a  man,  the  committee  would  proceed  with 
two  men.  That  brings  them  together  quickly,  very  soon  after 
the  accident,  right  on  the  spot. 

Mr.  Bailey  :  The  work  of  the  official,  call  it  board  of  arbitrators 
or  a  single  man,  I  assume,  would  be  liable  to  extend  over  a  period 
of  time  five  or  six  years,  and  would  keep  the  three  men  in  office 
for  that  period  and  have  their  meeting  from  time  to  time  for  re- 
vision and  all  that? 

Mr.  Saunders:  Yes,  I  would  have  this  a  permanent  board  or 
court,  whichever  you  might  call  it,  appointed  by  the  Governor  for 
terms  of  three  or  five  years  or  longer,  at  varying  periods. 

Mr.  Wain  WRIGHT:  You  would  only  have  the  third  man  per- 
manent? 

Mr.  Saunders:  The  third  man  in  the  committee.  Understand, 
I  would  have  a  State  board  of  arbitration,  one  member  of  which 
should  be  the  chairman  of  the  arbitration  committee  for  each  indi- 
vidual case. 

Mr.  Boyd:  You  would  have  the  board,  Mr.  Saunders,  created 
with  judicial  power? 

Mr.  Saunders:  Yes.  Then  I  would  have  a  revision  of  the  pay- 
ments made  obtainable  from  the  individual  board  and  the  State 
board  of  arbitration:    therefore,  you  would  get  your  uniformity. 

Mr.  Schutz:  May  I  suggest  to  Mr.  Saunders  the  possibility 
that  there  is  an  insurance  department  which  already  has  charge 
of  all  insurance  matters?  Why  could  this  not  be  done  by  an 
official  of  the  insurance  department,  why  should  not  this  board  be 
a  branch  of  the  insurance  department  of  the  State? 


185 

Mr.  Saunders:  If  we  have  State  insurance  coupled  with  this, 
yes.  If  we  don't,  why,  that  is  simply  a  court  proposition,  that  is, 
a  body  to  determine  the  issues  rather  than  to  supervise  insurance 
companies. 

Mr.  Wain  WRIGHT:  I  would  like  to  ask  if  he  considers  it  would 
be  competent  to  make  an  arbitration  committee  like  that? 

Mr.  Bailey:  For  this  reason,  we  have  a  saving  clause  that 
either  side  has  the  right  of  review  to  the  court,  to  the  equity  court, 
and  it  has  been  done  in  Massachusetts  quite  often.  We  have  an 
insurance  commissioner  given  powers  as  to  the  forms  of  insurance 
and  the  kind  of  insurance  business  that  may  be  done,  with  the 
right  of  review  in  the  court;  and  it  was  only  last  week  that  I  saw 
them  up  there  with  a  petition  for  review  of  his  action,  so  that,  if 
you  give  tx)  the  equity  court  a  right  of  review  or  right  of  appeal, 
then  you  meet  the  point  which  troubles  your  people,  and  I  think 
in  Massachusetts  it  will  be  all  right. 

Mr.  Wainwright:  I  would  like  the  other  commissioners  to 
understand  that  the  reason  we  did  not  reach  a  course  that  would 
be  a  satisfactory  solution  of  this  is  that  we  were  advised  by  coun- 
sel that  under  our  constitution  we  could  not  do  it.  We  could  not 
do  any  more  than  we  did. 

Mr.  Gillette:  I  would  hke  to  ask  Mr.  Bailey  a  question: 
What  questions  is  it  proposed  to  bring  before  this  tribunal? 

Mr.  Bailey:  I  would  hke  to  make  it  complete  judicial  au- 
thority, with  full  powers  and  discretion  to  deal  with  all  the  ques- 
tions upon  which  the  parties  fail  to  agree,  with  the  right  of  re- 
vision, of  course,  in  the  court. 

Mr.  Gillette:  The  question  of  degree  of  disability? 

Mr.  Bailey:  Everything,  and  that  would  meet  a  former 
question.  If  these  officials  are  appointed  through  the  Common- 
wealth, then,  just  the  same  as  our  probate  judges,  they  could  meet 
every  now  and  then  and  compare  notes,  just  the  same  as  our 
Superior  Court  judges.  We  have  twenty-five  of  them.  In  New 
York  they  have  one  hundred.  They  get  together,  and  to  some 
extent  compare  notes  and  to  some  extent  keep  things  somewhat 
uniform. 

Mr.  Gillette:  I  just  want  to  ask  a  few  questions,  and  that 
is  this,  a  number  of  questions  that  occurred  to  me  that  would 
arise  before  this  tribunal,  aside  from  questions  which  will  arise 
in  regard  to  the  construction  of  the  act  itself.  Of  course,  there 
are  a  lot  of  those  things  that  will  undoubtedly  have  to  be  litigated. 


186 

but  the  particular  questions  will  be  what  is  the  amount  earned, 
what  was  the  average  wage  rate?  If  those  provisions  were  carried 
out,  who  are  his  dependants,  etc.? 

Then  you  get  in,  outside  of  that, — you  get  into  questions  which 
in  their  character  are  medical.  Now,  it  seems  to  me  that  that  is 
where  you  get  into  the  difficult  question,  and  I  would  like  to  see 
as  a  constituent  part  of  that  court  a  medical  man,  who  by  being 
continued  in  that  position  would  become  proficient  and  expert 
and  invaluable. 

Not  only  that,  one  other  thing  that  has  bothered  me  is  the  ques- 
tion of  the  method  of  selection  or  appointment  of  these  arbi- 
trators. I  pray  to  the  Lord  that  they  will  be  kept  out  of  the  reahn 
of  politics  in  some  way  or  other.  How  they  will  do  it,  I  don't 
know. 

Mr.  Saunders:  Let  me  answer  some  of  those  questions. 

The  Chairman  :  Now,  gentlemen,  I  don't  want  to  be  technical 
here,  but  you  have  made  one  motion,  you  are  discussing  another. 
You  are  discussing  whether  or  not  you  want  the  board  of  arbitra- 
tors, while  the  motion  is  to  have  the  matter  referred  to  the  Chan- 
cery Court,  and  have  the  Master  pass  on  it.  Now,  if  there  is  a 
motion  to  amend,  I  think  your  discussion  would  be  proper,  but 
I  don't  think  it  is  on  this. 

Mr.  Boyd:  I  would  Hke  to  state  to  Mr.  Saunders  he  has  a 
motion  there. 

The  Chairman  :  Go  ahead,  if  you  have  a  motion. 

Mr.  Saunders:  I  will  make  an  amendment  to  get  this  in 
shape  for  discussion :  that  there  be  a  general  board  of  arbitrators, 
one  member  of  which  shall  be  the  chairman  of  the  committee  of 
arbitration  in  each  individual  case,  the  other  two  members  of 
that  committee  to  be  selected,  one  each  by  the  employer  and  the 
employee;  that  all  questions  arising  under  this  act  be  referred 
first  to  the  local  committee  of  arbitration,  with  power  of  revision 
of  the  payments  from  time  to  time  by  the  State  board  of  arbi- 
tration, whose  decisions  upon  facts  shall  be  final,  with  the  right 
of  appeal  upon  questions  of  law  direct  from  the  board  of  arbitra- 
tion to  the  Supreme  Court  of  the  State,  or  the  upper  law  court  of 
the  State. 

The  motion  was  seconded. 

Mr.  Wainwright:  Mr.  Chairman,  before  you  take  that  mo- 
tion up,  I  am  obliged  to  withdraw.  I  simply  wish  to  thank 
the  members  of  the  Commission  for  having  given  us  an  oppor- 


187 

tunity  to  be  heard.  Perhaps  it  was  not  much  to  our  advantage, 
as  we  have  made  a  final  report  to  our  Legislature,  but  our  Com- 
mission is  still  in  existence,  and  I  am  sure  will  be  very  much  in- 
terested to  have  the  results  of  the  deUberations  of  this  Commis- 
sion, but  will  be  very  glad  as  long  as  we  are  in  existence  to  keep 
in  touch  with  it;  and  it  is  quite  possible  that  the  result  of  the 
deliberations  of  this  Convention  here  may  move  us  to  make  some 
supplementary  report  to  our  Legislature,  and  I  shall  be  very  glad 
to  be  advised  of  any  adjourned  meetings,  as  I  would  like  to  keep 
in  touch  just  as  much  as  if  we  were  a  commission  that  had  a  report 
to  make  in  the  same  position  as  you  are. 

The  Chairman:  Mr.  Wainwright,  if  I  may  speak  for  myself 
once  and  also  for  the  whole  convention,  I  think  we  are  very 
thankful  to  have  had  you  here.  We  are  glad  also  to  acknowledge 
indebtedness  to  your  Commission  for  the  able  work  it  has  done  in 
getting  the  first  law  in  the  country,  getting  it  through  the  courts 
as  constitutional. 

Mr.  Wainwright:  Personally,  I  consider  the  obligation  to  be 
entirely  mine. 

Mr.  Gillette:  I  would  hke  to  ask  Mr.  Mercer,  so  far  as  this 
board  of  arbitration  is  concerned,  does  it  conflict  at  all  with  the 
plan  you  have  worked  out  under  your  constitution? 

The  Chairman  :  The  general  idea  of  their  scheme,  Mr.  Gillette, 
is  all  right,  except  that  we  have  been  taking  the  subject  up  piece- 
meal, and  we  are  not  going  to  get  a  scientific  code  on  the  subject. 
Now,  there  are  elements  of  this  I  want  to  vote  for  and  I  want  to 
support,  and  it  is  pretty  nearly  what  you  have  been  advocating 
on  this  particular  line.  I  am  not  sure  I  could  agree  with  you 
about  selecting  so  many  men  for  each  accident.  The  first  thing 
you  know,  you  would  have  four  hundred  arbitrators  in  Hennepin 
County  who  would  be  outside  on  the  segregated  cases,  and  the  one 
judge  who  was  there  would  not  probably  have  authority  to  take 
up  any  particular  case  and  dispose  of  it,  and  for  that  reason  I 
think  the  arbitrators  have  got  to  be  more  or  less  permanent. 

Now  I  should  think  also  that  on  the  question  of  the  selection 
of  these  I  would  go  back  to  where  I  was  to-day,  where  I  was 
defeated, — that  I  should  be  heartily  in  favor  of  that  if  you  would 
only  put  the  burden  on  both  sides,  so  you  would  work  out  the 
scheme. 

Mr.  Saunders:  One  question  Mr.  Gillette  suggested.  That 
is  as  to  the  appointment  of  these  officials.     Of  course,  he  knows 


188 

that  in  Massachusetts  anything  that  deals  with  the  judicial  branch 
of  the  government  is  an  appointment  by  the  Governor. 

The  Chairman  :  It  is  not  in  Minnesota. 

Mr.  Saunders  :  And  that  we  have  no  politics  connected  in  any 
Avay  with  that  judiciary,  so  that  we  do  not  have  to  trouble  with 
that  question  at  all. 

In  regard  to  the  doctor  proposition,  we  have  included,  I  think, 
although  it  was  not  in  the  motion,  a  provision  that  this  local  board 
of  arbitration  could  employ  at  any  time  a  physician  for  an  examina- 
tion and  consultation  at  the  expense  of  the  State.  Of  course, 
that  would  work  out  in  difficult  cases  in  having  more  or  less  per- 
manent men,  because  the  chairman  would  be  a  member  of  the 
permanent  board,  and  if  he  knew  of  a  good  man  that  had  a  good 
deal  of  experience  in  that  kind  of  cases,  why,  that  would  be  the 
man  he  would  have. 

Mr.  Gillette:  I  believe  the  only  point  in  which  I  differ  is  on 
that  medical  question.  I  think  he  ought  to  be  a  fixture  there, 
and  that  he  alone  ought  to  pass  on  questions  of  disability. 

Mr.  Lowell:  The  point  Mr.  Gillette  mentioned.  There  is  a 
large  amount  of  arbitration  litigation,  if  you  can  call  it  so,  in 
Germany,  as  I  understand  it.  It  is  because  there  is  absolutely 
no  fee  to  be  required.  Now  in  Massachusetts  the  very  important 
part  of  the  scheme  is  that  the  expenses  of  the  arbitration  board 
shall  be  placed  partly  on  the  employees,  either  a  limit  of  five  dollars 
or  a  limit  of  one-third  of  the  costs,  not  to  exceed  something,  so 
that  the  employee  shall  have  a  very  small  amount,  but  still  an 
amount  which  he  must  pay  if  he  wants  to  arbitrate;  and  we  put 
it  in  so  because  we  thought  that  it  should  not  be  absolutely  free 
or  they  would  go  for  it  every  time,  and  it  should  not  be  prohibitive, 
but  it  should  be  something  that  a  man  would  think  twice  before 
he  went  before  it. 

Mr.  Gillette  :  How  do  you  fix  it  in  Wisconsin? 

Mr.  Sanborn:  A  general  board  appointed  by  the  Governor, 
confirmed  by  the  Senate,  a  permanent  board.  They  have  power 
to  appoint  the  examiner  that  may  be  needed  if  there  is  necessity 
to  send  to  each  place  and  take  testimony  immediately. 

The  Chairman  :  You  mean  finding  the  facts? 

Mr.  Sanborn  :  No,  an  examiner  simply  reports  into  the  board, 
and  the  board  makes  their  findings  of  fact,  and  those  findings  of 
fact  are  absolutely  conclusive.  The  only  review  that  can  be  is 
on  the  construction  of  the  act,  that  is  whether  the  findings  of  fact 
afford  a  conclusion  according  to  the  act  itself  or  not. 


189 

Mr.  Gillette:  Now  you  have  a  board  sitting  there  in  Wis- 
consin, you  send  a  man  where  there  is  an  accident  here  or  there. 

Mr.  Sanborn  :  We  have  examiners  all  through  the  State.  They 
simply  take  the  testimony. 

The  Chairman  :  Do  you  take  them  down  in  stenographic  notes? 

Mr.  Sanborn:  I  expect  to.  That  is  all  done  at  the  expense  of 
the  State. 

Mr.  Gillette:  And  those  judges  sitting  there,  they  don't 
see  the  injured  man? 

Mr.  Sanborn:  They  can  do  that  if  they  see  fit,  but  they  are 
not  obHged  to.  Now  that  law  will  depend  on  the  amount  of  work 
there  is.  If  there  is  a  large  amount,  they  only  see  half  of  them ; 
but,  if  there  is  not,  they  will  be  all  around  the  different  places. 

Mr.  Gillette:  It  seems  to  me  I  would  be  mighty  leary  on 
the  question  of  fact,  whatever  I  might  think  of  the  question  of 
law,  but  on  the  question  of  fact,  the  board  of  arbitration  sitting 
there  and  not  seeing  the  fellow. 

Mr.  Sanborn:  Well,  that  is  true,  but  you  can  get  some  men 
before  the  board :  it  is  a  physical  impossibility  with  a  large  num- 
ber of  cases  to  get  all. 

Mr.  Gillette:  Unless  there  was  a  competent  man  on  the 
spot  to  settle  it  and  make  findings. 

Mr.  Sanborn:  Well,  that  is  a  matter  of  consideration. 

Mr.  Gillette:  I  am  just  raising  these  questions. 

Mr.  Sanborn:  Yes,  an  examination  would  be  a  recommenda- 
tion to  the  board,  and  they  would  take  into  consideration,  in 
evidence,  but  what  we  are  aiming  at  is  uniformity. 

Mr.  Gillette:  May  I  ask  whether  a  final  report  has  been 
made  in  Wisconsin  or  whether  it  is  before  the  Commission? 

Mr.  Sanborn:  It  has  not. 

Mr.  Gillette  :  Have  you  framed  the  bill? 

Mr.  Sanborn  :  No,  we  have  not  yet  agreed  on  the  final  bill. 

Mr.  Wigmore:  I  would  like  to  say  that  each  of  them  avoids 
what  seems  to  us  a  defect,  on  the  one  hand,  in  the  English  act 
and,  on  the  other  hand,  in  the  New  York  act.  The  defect  in  the 
New  York  act  is  the  workman  has  to  make  his  first  claim  to 
the  court;  and  I  think  all  lawyers  will  agree  that  we  must  relieve 
the  situation  from  the  maze  of  technical  refinement  that  comes  up 
as  long  as  any  man  has  to  make  a  claim  directly  to  anything 
called  a  court,  because  that  means  a  lawyer,  and  that  means 
pleadings,  and  that  means  all  sorts  of  expenses.     I  don't  under- 


190 

stand  that  either  of  these  propositions  is  Hkely  to  offend  in  that 
way.  On  the  other  hand,  the  Enghsh  act,  it  seems  to  me,  makes 
the  great  moral  mistake  of  obliging  the  injured  workman  to  go 
first  to  the  employer.  That  is  the  whole  moral  crux  of  the  situa- 
tion to-day.  If  I  am  hurt  in  your  factory,  and  I  come  to  you 
or  my  family  come  to  you,  and  want  to  get  some  compensation, 
there  is  a  lot  of  resentment  right  away.  I  ought  not  to  be  obliged 
to  make  my  first  statement  to  you  any  more  than  when  I  am  hurt 
on  the  street  car  to-day,  and  have  an  accident  policy.  I  would 
not  expect  to  go  to  the  street  car  company.  I  would  settle  it  up 
with  my  friend  the  insurance  company.  You  know  they  settle 
up  in  good  time.  You  know  how  they  do  these  things, — there 
is  no  hard  feeling  generally, — and  the  greatest  moral  effect  is  to 
be  had  under  our  new  regime  here  by  simply  stating  that  the 
employee  shall  make  his  first  claim  the  moment  he  is  hurt,  not 
to  the  employer,  but  to  some  independent  body. 

Mr.  Gillette:  I  wish  other  people  would  send  their  bills 
against  me  to  somebody  else. 

Mr.  Schutz:  I  move  the  question  and  the  motion  of  Mr. 
Saunders. 

Mr.  Sanborn:  Gentlemen,  I  understand  in  your  motion  you 
provided  the  board  of  arbitration,  one  to  represent  the  laboring 
man  and  one  the  manufacturer. 

Mr.  Saunders:  In  the  individual  committee,  yes. 

Mr.  Bailey:  I  would  like  to  ask  Mr.  Saunders  one  question. 
How  do  you  get  rid  of  the  jury  trial? 

Mr.  Saunders:  Now,  that  is  a  constitutional  question.  I 
shall  be  very  glad  to  answer  it,  but  it  seems  as  though  it  would 
bring  up  the  whole  constitutional  question. 

The  Chairman:  We  have  another  constitutional  question 
on  this,  too.  Now,  gentlemen,  I  want  to  say  frankly  that  I  would 
like  to  vote  for  this  feature,  but  I  don't  want  to  vote  for  this 
motion  as  it  stands.  I  like  to  vote  for  the  principle  of  the  board 
of  arbitrators.     I  would  like  to  have  them  find  the  facts. 

Judge  Holloway:  I  am  just  going  to  state  this,  that  the  ma- 
chinery of  a  scheme  of  this  kind  in  Montana  should  be  carried 
out  without  any  change  of  the  statutes.  We  have  a  provision 
in  our  statutes  for  the  settlement  of  all  controversies  by  arbi- 
tration, and  the  machinery  is  provided  for  in  the  statutes.  So 
far  as  we  are  concerned,  it  would  not  need  any  change  in  the 
law.     My  notion  is  in  harmony  with  Mr.  Dickson's  suggestion,. 


191 

that  we  approve  of  a  method  of  determining  controversies  be- 
tween the  employer  and  the  injured  employee  and  use  the  in- 
strumentality of  a  board  of  arbitrators,  and  then  leave  it  to 
every  State  to  work  out  the  particular  scheme. 

The  Chairman:  Personally,  I  could  vote  for  that,  I  think, 
if  you  can  substitute  that.  Now  will  you  have  the  question 
upon  the  original  question  as  amended  and  substituted?  The 
amended  motion  is  to  recommend  to  the  different  Commissions 
the  theory  of  a  board  of  arbitrators  to  determine  the  fact  in  these 
accident  cases  in  cases  of  dispute,  and  leave  the  matter  to  each 
State  how  they  will  formulate  that  board. 

The  motion  was  put,  and  prevailed. 

Number  11.    Nature  of  Scheme:  Compensation,  Insurance, 
OR  State  Insurance,  (a)  Voluntary,  (b)  Compulsory? 

The  Chairman  :  Now  the  nature  exactly,  whether  it  should  be 
compensation  insurance,  State  insurance,  voluntary,  compulsory. 
That  you  have  under  number  11.  Is  there  anybody  wants  to 
make  any  motion  on  that? 

Mr.  Schutz:  I  move  that  we  recommend  the  principle  of 
insurance,  a  plan  of  insurance  approved  by  the  State. 

Mr.  Lowell:    Compulsory? 

Mr.  Schutz:  Yes,  I  would  say  compulsory  scheme. — I  think 
that  is  going  too  far  probably.  I  will  leave  out  the  word  "  com- 
pulsory." 

The  Chairman:  We  have  a  motion.     Is  it  seconded? 

Seconded  by  Mr.' Boyd. 

Mr.  Bailey:  I  would  move  as  an  amendment  that  we  adopt 
the  scheme  which  would  be  in  the  nature  of  .compensation. 

Seconded  by  Mr.  Lowell. 

The  Chairman  :  Motion  made  to  adopt  a  scheme  which  would 
be  in  the  nature  of  compensation.  If  some  kind  fellow  will 
take  the  hypnotic  suggestion,  I  wish  he  would  make  a  motion 
that  compensation  be  compulsory,  with  permissible  insurance. 

Mr.  Bailey:    I  accept  that. 

Mr.  Boyd:  Voluntary. 

The  Chairman:    Well,  voluntary  or  compulsory,  either  way. 

Mr.  Boyd:   Voluntary. 

The  Chairman:    Is  that  seconded? 

Mr.  Lowell:   Seconded. 


192 

The  Chairman:  Any  remarks  on  that  amendment? 

Judge  Hollo  way:  Mr.  Chairman,  I  don't  know  what  you 
mean. 

The  Chairman:  Here  is  what  I  mean.  Here  are  the  three 
systems  in  vogue  in  Europe.  I  have  got  it  written  out  here 
briefly,  just  three  short  paragraphs. 

A.  Requiring  the  employer  to  pay  compensation  as  provided 
in  the  act,  if  such  injuries  occur,  and  this  you  may  find  in  the 
laws  of  Belgium,  Denmark,  France,  Great  Britain,  Greece,  Russia, 
Spain,  Canada,  etc.  Almost  all  of  these  have  provisions  allowing 
the  employer  to  insurejiimself,  and,  if  properly  insured,  to  be 
relieved  from  liability. 

B.  Laws  establishing  liability  for  compensation,  and  also 
obliging  the  risk  to  be  insured  eitEer  in  State  or  State-regulated 
companies  as  a  guaranty  of  responsibility.  Finland^  Italy,  and 
the  Netherlands  are  examples  of  that  class. 

C.  Those  requiring  the  risk  to  be  insured  in  the  specific  man- 
ner or  specific  institution.  Austria,  Germany,  Hungary,  Luxem- 
bourg, and  Norway,  they  serve  as  examples  of  that. 

Mr.  Gillette:  Mr.  Chairman,  I  wish  some  of  those  in  favor 
of  it  would  make  a  motion  favoring  State  insurance  just  simply 
for  the  purpose  without  argument,  but  I  just  simply  would  like 
to  know  what  the  sentiment  is  with  regard  to  that. 

Mr.  Rohr:  Mr.  Chairman,  I  am  free  to  confess  I  will  make 
a  motion. 

The  Chairman:   There  are  several  motions  before  the  house. 

Mr.  Rohr:  Let  it  take  the  form  of  State  insurance,  and  that 
the  compensation  be  handled  by  the  State,  paid  into  a  fund 
governed  and  regulated  by  the  State. 

The  Chairman:  It  is  moved  and  seconded  that  the  employer 
be  required  to  pay  insurance  into  the  State  and  the  State  ad- 
minister it. 

Mr.  McEwen:  I  think  it  would  be  a  good  idea  for  our  Com- 
mission to  recommend  to  the  Legislature  to  provide  for  a  State 
insurance.  It  takes  a  long  time  to  get  a  constitutional  amend- 
ment, and  we  have  the  machinery  here  fixed  so  that  it  can  be 
brought  about.     It  would  be  a  great  saving  of  time. 

Now  I  recognize  that  there  are  a  large  number  of  people  who 
are  fearfully  afraid  of  the  State  becoming  paternalistic  on  ques- 
tions of  this  kind.  We  have  no  hesitancy  whatever  on  being 
paternalistic  in  taking  care  of  our  mental  wrecks,  men  who  have 


193 

lost  their  reason.  A  man  who  has  lost  his  reason  is  a  menace 
to  society.  We  are  afraid  he  will  commit  bodily  harm  to  others, 
so  we  maintain  State  hospitals  for  his  care  and  cure,  if  possible. 
We  maintain  almshouses  where  the  Chicago  Daily  News  here 
holds  that  at  least  ten  per  cent,  of  our  industrial  wrecks  are 
forced. 

I  can't  for  the  life  of  me  see  where  we  are  interfering  with  any 
legitimate  private  business  by  going  into  this  form  of  pater- 
nalism. We  have  got  to  come  to  it  sooner  or  later,  and  we 
ought  to  have  at  least  the  right  to  go  into  it.  We  ought  to  have 
the  right  as  a  club  to  compel  the  stock  companies  to  be  fair  with 
the  employers  and  others.  I  believe  State  insurance  is  the  only 
economic  way  out  of  it. 

I  have  heard  so  much  in  our  discussion  of  this  question  and  my 
study  of  this  question  about  the  ambulance-chasing  attorney. 
Under  the  present  system,  I  don't  think  he  is  so  bad.  Why, 
he  is  a  necessary  adjunct  to  the  present  system,  just  as  neces- 
sary to  the  workingman  as  the  employers'  liability  company 
is  to  the  employer.  That  is  self-evident.  The  whole  theory  of 
the  character  of  legislation  thus  far  has  been  to  make  unprofi- 
table the  business  of  the  personal  injury  attorney,  and  we  fail  to 
reckon  with  the  business  of  the  employers'  liability  company. 
In  order  to  mete  out  the  measure  of  justice  to  the  injured  work- 
ingman, to  save  industry  from  being  penalized,  why,  we  ought 
to  get  down  to  the  cause  of  the  operation,  to  a  scientific  basis. 

Now  I  want  to  say  at  the  outset,  I  am  not  a  socialist,  so  don't 
think  I  am  advocating  anything  that  means  confiscation  of  pri- 
vate property. 

Do  whatever  you  can  under  the  law  now,  under  the  constitu- 
tion now,  but  look  forward  to  the  development  of  the  idea  here, 
that  we  can  have  matters  so  that  we  can  do  away  with  all  this 
waste  that  now  obtains  in  industry.  In  New  York  State,  accord- 
ing to  the  Bureau  of  Labor,  they  report  about  eighty  cents  of 
every  dollar  paid  by  employers  for  protection  against  lawsuits 
goes  to  the  people  who  were  not  injured. 

Now  you  have  the  cost  of  your  machinery,  the  cost  of  con- 
ducting the  courts,  the  salaries  of  judges,  the  money  for  jurors, 
the  time  of  the  courts. 

Why,  in  1906, — if  I  am  making  any  incorrect  statements,  I 
hope  I  shall  be  corrected, — but  I  am  given  to  understand  that 
four  million  dollars  was  paid  in  the  city  of  New  York,  to  try 


194 

master  and  servant  cases,  and  in  one  year  eighteen  hundred 
thousand  dollars'  damages  were  paid.  Now  nine  hundred 
thousand  of  that  possibly  got  into  the  pockets  of  the  injured 
workingman.  Why,  here  we  have  the  machinery  of  justice  to 
administer  nine  hundred  thousand  dollars'  damages,  costing 
four  million  dollars.  That  waste  there  under  State  insurance 
could  all  be  eliminated.  The  State  could  pay  the  cost  of  ad- 
ministration, and  it  could  be  covered  by  the  revenue  received 
from  taxation,  and  it  could  be  used  for  the  compensation  of  the 
injured  workingman.  We  want  to  look  at  these  laws  from  a  com- 
mercial standpoint,  but  more  from  a  humanitarian  standpoint, 
more  with  the  idea  of  decreasing  the  amount  of  pauperism.  While 
I  think  I  may  probably  be  ten  years  in  advance,  we  ought  to 
stand  for  this  thing  ten  years  in  advance  of  the  time,  for  it  takes  a 
long  time  to  amend  a  constitution,  long  time  before  we  can  get 
the  bill  passed  through  the  Legislature.  I  think  we  ought  to 
also  recommend  an  amendment  to  the  constitution  of  each  State 
for  the  purpose  of  enabling  us  to  get  ultimately  into  the  idea  of 
State  insurance. 

Mr.  Lowell:  Mr.  Chairman,  I  want  to  be  perfectly  fair 
with  this  Conference,  and  I  have  got  to  state  a  personal  situa- 
tion. I  have  been  the  attorney,  one  of  the  attorneys,  for  the 
Employers'  Liability  Association,  the  first  one  ever  in  this  coun- 
try, and,  I  suppose  that  without  my  meaning  to,  because  I  have 
tried  to  be  fair-minded,  I  naturally  am  biassed,  but  I  don't  believe 
in  this  State  insurance  scheme  at  present.  I  think  possibly  we 
might  develop  towards  it,  and,  if  the  other  scheme  does  not  work, 
that  scheme  may.  At  present  it  seems  to  me  that  we  have  not 
developed  far  enough  in  this  country  to  consider  it. 

I  will  say  at  the  start  that  I  think  it  is  absolutely  impossible 
under  the  Massachusetts  constitution  to  get  it  without  amending 
the  constitution,  but  it  seems  to  me  that  the  results  which  you 
would  get  in  Massachusetts,  if  you  had  State  insurance,  would 
be  a  tremendous  political  body.  I  don't  think  you  can  run  a 
great  institution,  such  as  would  be  required  to  carry  on  the  in- 
surance of  all  employers  in  Massachusetts,  without  running 
into  the  situation  whereby  it  would  be  a  political  institution. 

I  think  you  would  have  people  pulling  and  hauling  on  both 
sides  of  the  proposition,  employers  and  employees,  to  get  the 
head  people  and  the  under  people  appointed  to  represent  one 
side  or  the  other.     Now  we  have  in  Massachusetts,  and  I  suppose 


196 

you  do  in  other  States,  the  Civil  Service  Commission,  fairly  rigid 
civil  service  laws  under  which  the  employees  of  such  commissions 
as  this  would  have  to  pass  examinations.  Now  I  don't  want  to 
give  a  black  eye  to  civil  service,  but  I  will  be  frank  in  saying 
that  I  consider  civil  service  only  a  necessary  evil.  You  would 
want  to  appoint  a  man  of  the  highest  kind  who  would  come  under 
the  civil  service,  and  you  might  want  to  appoint  a  man  for  his 
tact  in  dealing  with  the  relations  between  employers  and  employ- 
ees. You  would  want  a  fair-minded  man,  who  could  see  both 
sides  of  the  situation. 

Now  you  can't  possibly  invent  a  series  of  examinations  for 
civil  service  which  would  test  that  in  the  slightest  degree.  Of 
course,  you  have  got  to  have  it,  for  the  reason  that,  if  you  don't, 
you  are  simply  getting  political  appointments.  Now  I  am  talk- 
ing frankly,  and  the  only  reason  for  the  civil  service  in  my  mind 
is  to  get  the  best  man  or  best  man  or  men  which  you  can  under 
that  system. 

Now  my  idea  is  that  the  best  man  that  you  could  get  under 
that  civil  service  is  a  very  much  poorer  man  than  you  would  get 
if  it  were  possible  to  have  all  of  your  people  appointed  by  a  gov- 
ernor or  anybody  else,  whoever  the  appointing  power  might  be. 
It  seems  to  me  that  the  present  results  of  State  insurance  would 
be  to  get,  as  I  say,  a  political  body  with  a  quite  inferior  set  of 
officials  governing  it. 

Now  I  realize  that  there  are  very  serious  evils  connected  with 
this  situation.  And  my  idea  is  that  the  insurance  company  is 
not  altogether  and  not  very  largely  at  fault.  The  trouble  is 
with  the  present  situation  that  the  basis  of  the  law  is  such,  namely, 
liability  for  negligence,  liability  for  fault,  that  the  first  thing 
which  anybody  does,  and  has  got  to  do,  under  the  law,  is  to 
begin  to  call  names:  that  is  really  the  result  of  it.  In  order  to 
recover  against  your  employer  now,  you  have  got  to  prove  that 
he  is  negligent.  Now  the  minute  you  come  in  and  try  to  prove 
that  he  is  negligent,  of  course  he  tries  to  prove  he  is  not  negli- 
gent, and  the  immediate  result  is  that  both  parties  get  mad. 
It  is  the  natural  result  of  our  wrong  system. 

Now,  when  you  come  to  the  insurance  companies,  they  simply 
insure  the  situation.  Of  course  there  is  not  any  human  element 
involved  in  their  business.  That  is  a  business,  but  it  is  a  per- 
fectly legitimate  business,  to  insure  under  the  present  system, 
and  the  fault  with  the  result  of  that  part  of  it  is  not  the  fault 
of  the  insurance  company,  but  the  fault  of  the  system. 


196 

It  seems  to  me  that  the  best  way  to  get  out  of  this  thing  is 
to  go  ahead  with  some  different  kind  of  a  system,  make  your 
details  or  administration  such  that  there  will  be  as  little  as  pos- 
sible litigation  under  it  of  any  kind,  and  especially  as  little  as 
possible  on  the  liability  end  of  it,  because  that  is  where  you  begin 
to  call  a  man  names.  It  is  on  the  liability  end  of  it.  Take  out 
of  that  system  all  the  liability,  chances  for  discussing  liabilities, 
that  is  possible,  and  then  leave  any  details  in  which  you  don't 
have  to  call  names,  such  as  the  question  of  the  extent  of  dis- 
ability, etc.  It  seems  to  me  that  a  system  of  that  kind  will  do  a 
great  deal  toward  helping  the  situation. 

Now  there  are  going  to  be  under  any  system  of  compensation, 
there  are  going  to  be  a  tremendously  greater  number  of  acci- 
dents which  are  covered  by  the  law,  and  therefore  a  great  deal 
more  insurance  and  very  much  keener  competition  for  insurance. 
It  seems  to  me  that  the  natural  result  of  that  will  be  that  the 
various  companies,  in  order  to  meet  this  thing,  have  got  to  cut 
the  rates  among  themselves.  Of  course  there  may  be  tariffs 
and  all  that,  but  they  have  got  to  cut  the  rates  among  themselves, 
and  the  result  of  that  will  be  that  a  great  many  expenses  con- 
nected with  insurance  will  have  to  come  down. 

Now  one  of  the  chief  things  which  account,  perhaps  not 
one  of  the  chief,  but  a  very  large  thing  which  accounts  for  the 
amount  of  money  wasted  in  insurance, — and  it  is  wasted, — is 
the  question  of  getting  the  risk  into  the  insurance  companies. 
Now  the  companies  pay  very  largely  for  that.  As  it  happens, 
my  special  company  pays  less  than  most,  but  they  pay  very 
largely  for  that. 

Now  what  the  companies  have  to  fear  under  this  thing  is  the 
mutual  company.  They  have  got  to  make  good,  to  use  a  vul- 
gar phrase,  or  they  will  get  left,  so  that  they  have  got  all  the 
time  under  the  new  system  to  make  their  charges  just  as  low  as 
they  possibly  can,  with  the  system  of  mutual  insurance  star- 
ing them  in  the  face. 

It  so  happens  that  in  Massachusetts,  where  they  have  got  a 
large  mutual  insurance  company  in  the  textile  trade,  their  atti- 
tude toward  paying  employees,  injured  employees,  is  worse  than 
the  private  companies.  I  don't  think  that  is  a  necessary  atti- 
tude of  a  mutual  perhaps,  but  it  is  because  they  are  in  compe- 
tition with  the  Une  companies,  and  they  want  to  show  their 
clients  that  they  can  do  it  cheaper.     The  question  of  mutual 


197 

companies  will  stare  these  companies  in  the  face  all  the  time 
under  the  law,  and  that  will  tend  to  keep  down  their  unnecessary 
charges,  so  that  it  seems  to  me  that  for  the  present  we  ought  to 
go  along  under  some  different  scheme  than  State  insurance; 
and,  if  it  turns  out  that  the  thing  is  not  working  well,  if  it  be  the 
result  of  experience  that  you  must  have  State  insurance,  why, 
then  go  ahead  and  get  it.  In  that  situation  you  would  be 
likely  to  get  it,  but  under  the  constitution  in  Massachusetts 
now  I  don't  think  there  is  a  ghost  of  a  show  of  getting  this  amend- 
ment anj^where  near  through. 

Mr.  Boyd:  On  the  matter  of  insurance,  as  I  stated  in  my 
opening  statem^ent,  fifty  per  cent,  of  the  employers  in  Ohio  em- 
ploy less  than  twenty  men.  Now  where  the  common  law  de- 
fences are  eliminated,  the  number  of  cases  in  which  there  would 
be  a  liability  placed  upon  small  employers,  where  you  have  sev- 
eral thousands  of  them  in  the  population  of  six  million  people, 
would  be  very  numerous.  In  order  to  make  a  compensation 
act,  which  I  would  rather  call  insurance  against  accident,  effec- 
tive in  the  State  of  Ohio,  it  will  be  necessary  to  require  that  the 
small  employer  must  insure  against  his  liability. 

Now  there  may  be  a  possible  solution  of  that  through  the 
French  scheme  where  the  employer  is  required  either  to  insure 
in  the  state  insurance  company  or  he  is  required  to  carry  in- 
surance covering  his  liability  in  private  companies,  or  he  may 
pay  a  small  tax  into  the  state  and  the  state  guarantees  his  sol- 
vency that  it  will  pay  the  compensations  that  may  be  awarded. 

Professor  Henderson  thought,  in  talking  with  him  a  couple  of 
weeks  ago,  that,  if  we  found  that  it  would  be  unconstitutional 
to  have  State  insurance,  which  in  my  opinion  will  be  the  ulti- 
mate solution  of  the  problem,  we  will  be  driven  to  it  on  eco- 
nomic conditions,  because  we  have  to  be  competitors  almost 
wholly  of  two  nations,  the  German  nation  and  the  Japanese 
nation,  almost  exclusively  in  the  next  twenty-five  years. 

Now  I  want  to  call  your  attention  to  a  very  important  his- 
torical fact.  In  1866  the  English  Parliament  appointed  a  com- 
mission, of  which  Matthew  Arnold  was  chairman,  to  investi- 
gate educational  conditions  on  the  Continent  with  a  view  to 
correcting  their  industrial  difficulties.  That  commission  made 
a  report  in  1869  briefly  to  this  effect: — 

That  on  the  Continent  they  had  a  diversified  industrial  edu- 
cational scheme,  which  was  compulsory  upon  children  from  six 


198 

to  fourteen  years  of  age.  Now  the  Englishman  declined  to 
modify  his  educational  scheme,  because  it  was  repugnant  to 
the  English  character,  as  Matthew  Arnold  put  it,  to  be  com- 
pelled to  do  anything. 

Now,  then,  the  facts  of  the  matter  are  that,  while  you  men 
think  that  is  a  very  amusing  matter,  that  poor  England's  de- 
generacy and  her  weakness  are  almost  wholly  due  to  the  failure 
to  act  upon  that  report;  and  the  same  action  cost  them  im- 
mense economic  loss. 

Now  they  came  up  to  the  same  old  thing  again.  They  go 
over  to  Germany  and  pick  out  everything  that  Germany  has 
got,  its  compensation  scheme,  except  they  must  not  make  it 
compulsory  upon  the  employer,  because  it  is  repugnant  to  his 
English  character.  Now,  then,  we  in  our  common  school  sys- 
tem did  not  follow  the  English  character.  We  made  it  compul- 
sory upon  children  from  six  to  fourteen  years  of  age,  and  the 
facts  are,  if  we  wish  to  stay  in  competition  with  Germany,  we 
will  never  do  it  successfully,  taking  a  period  of  fifty  years,  except 
by  doing  two  things.  One  thing  is  to  have  industrial  educatibn 
diversified,  and  the  other  is  to  have  your  insurance  or  your  com- 
pensation scheme  against  accidents  a  State  provision.  This  is 
just  as  sure  as  the  sun  rises. 

Mr.  Schutz:  Mr.  Chairman,  I  think  there  might  be  a 
misinterpretation  of  the  last  speaker's  remarks.  Certainly  in 
Germany  there  is  no  State  insurance  to-day.  The  gentleman 
does  not  wish  to  infer  that? 

Mr.  Boyd:  They  provide  by  law,  the  employers  are  bound  to 
form  an  association. 

Mr.  Schutz:  In  a  different  way,  as  I  said. 

The  Chairman:  I  wish  you  would  bring  up  your  motion,  Mr. 
Boyd,  that  is  the  whole  question. 

Mr.  Boyd:  Just  a  minute.  The  reason  I  did  not  go  back  over 
this  German  law  and  formation  of  employers  into  associations 
and  that  sort  of  thing,  I  thought  that  would  take  time  and  con- 
fuse matters.  They  also  form  associations,  they  being  required 
to  insure  individually.  I  simply  called  that  State  insurance. 
Probably  that  is  not  quite  technically  correct,  but  it  is  com- 
pulsory insurance  against  liability. 

Mr.  Rohr:  We  find  in  one  company  represented  by  one  gentle- 
man at  Cleveland,  Ohio,  Mr.  Wilson  by  name,  in  adjusting  sixty- 
five  thousand  eight  hundred  claims  for  accidents  of  this  per- 


199 

sonal  risk  compensation  or  any  kind,  out  of  sixty-five  thousand 
eight  hundred  less  than  six  per  hundred  received  compensation. 
The  State  of  Ohio,  so  far  as  we  gather  it  from  statistics,  shows  two 
million  five  hundred  thousand  dollars  paid  by  indemnity  com- 
panies, not  counting  what  is  paid  by  the  workmen  to  insure 
themselves,  and,  out  of  the  two  million  five  hundred  thousand, 
eight  hundred  thousand  was  recovered  by  the  workmen;  and 
out  of  that  they  had  to  pay  their  expenses  for  attorneys  and 
other  costs,  leaving  them  approximately  forty  per  cent. 

With  the  State  handling  the  insurance  proposition,  he  might 
gain  nearly  all  of  that.  I  am  not  very  well  versed  in  law,  but 
the  State  protects  its  birds,  cows,  sheep,  pigs,  horses.  Maine 
spends  approximately  sixty  thousand  dollars  per  year  caring  for 
its  fish  and  birds  and  game.  That  is  all  paid  into  a  general  fund, 
and  the  State  administers  it.  If  it  is  possible  to  protect  those 
lowly  creatures,  yet  they  are  handicrafts  of  God,  is  it  not  possible 
for  the  human  mind  to  conceive  that  they  could  protect  human 
life  and  limb,  and  let  the  State  administer  it?  That  is  all  my 
contention  in  the  question. 

Mr.  Bailey:  Mr.  Chairman,  just  a  question  on  this  question 
of  State  insurance  before  we  take  the  vote.  I  understand  we 
are  going  to  vote  on  State  insurance.  I  understand  the  situation 
is,  leaving  out  the  constitutional  problem,  that  we  are  to  tax  all 
the  tax-payers  of  the  State  and  raise  a  fund  by  which  the  work- 
men are  to  be  insured  against  accident. 

The  Chairman:  The  tax  classifies  the  industry  is  the  idea  of 
the  thing. 

Mr.  Bailey:  Classifies  the  employers. 

The  Chairman:  More  upon  his  liability. 

Mr.  Alexander:   Mr.  Chairman,  is  an  amendment  in  order? 

The  Chairman:  Can  you  discuss  it  under  one  of  these  prin- 
ciples? 

Mr.  Alexander:  We  can  discuss  it,  and  you  can  hold  whether 
I  should  put  it  in  the  form  of  an  amendment.  We  have  heard 
the  objections  to  the  private  insurance  companies,  the  employers' 
liability  companies.  We  also  have  heard  Mr.  Lowell's  defence 
of  these  people  winding  up  with  the  plea  that  we  ought  to  give 
them  a  chance  under  this  new  law  to  show  how  well  they  can 
behave  and  what  they  will  do. 

Now  I  think  we  have  given  them  a  chance  to  show  how  well 
they  can  behave,  economically,  and  they  have  not  done  it,  at 


200 

least  that  is  the  evidence  here  and  everywhere.  Why  ought 
we  to  give  them  a  few  more  years  to  show  what  they  can  do? 
Why  should  we  give  them  any  more  time?  It  has  been  brought 
out  always  on  such  occasions  how  liberal  they  will  be  and  how 
humane  they  will  be  to  the  employee. 

On  the  other  hand,  Mr.  Chairman,  I  do  not  believe  in  any 
system  that  is  so  iron-clad  that  it  eliminates  flexibility,  that 
could  not  make  for  good.  I  have,  therefore,  the  idea  that,  inas- 
much as  we  want  to  safeguard  payments  of  compensation  to  the 
employee  to  the  amount  of  one  hundred  per  cent.,  if  we  could,  or 
to  approximately  one  hundred  per  cent.,  so  that  all  the  money  con- 
tributed for  that  purpose  may  go  to  the  injured  employee,  I 
would  have  the  economic  principle  brought  to  the  foreground 
as  much  as  possible. 

It  seems  to  me  we  can  express  ourselves  in  favor  of  the  prin- 
ciple of  State  insurance  in  this  way:  that  the  State  shall  estab- 
lish a  department  in  which  every  employer  may  insure  at  such 
rates  as  the  State  commissioner  may  establish,  but  the  employer 
shall  be  allowed  at  least  the  option  under  this  special  legislation 
to  insure  in  private  companies,  in  mutuals,  or  in  any  other  way, 
provided  these  companies  are  under  the  supervision  of  the  State 
department,  and  their  rates  are  approved  by  the  State  insurance 
department  as  being  at  least  as  low  as  the  State  would  require 
for  insurance  in  the  State  insurance  department. 

Mr.  Boyd:  That  is  practically  the  French. 

Mr.  Alexander:  More  like  the  Norwegian  system.  Can 
that  be  put  in  the  form  of  an  amendment? 

The  Chairman:  I  think  that  goes  to  the  merits  of  the  question. 
We  are  not  now  after  any  special  form:  we  are  after  State  in- 
surance. 

That  is  the  point, — State  insurance;  and  under  State  in- 
surance it  makes  it  permissible  just  as  we  have  made  it  per- 
missible.    That  is  already  in  one  of  the  other  amendments. 

Mr.  Alexander:  What  other  amendment? 

The  Chairman:  Mr.  Bailey  moved  at  my  suggestion  that  the 
compensation  be  compulsory  with  permissible  form  of  insurance. 

Mr.  Alexander:  But,  if  you  say  compulsory,  you  must  pro- 
vide for  State  insurance  departments. 

Mr.  Lowell:   No,  compulsory  compensation. 

The  Chairman:  Compulsory  compensation,  allowing  the  risk 
to  be  insured  either  in  a  private  company  or  a  mutual. 


201 

Mr.  Alexander:  You  should  commit  this  Conference  to  the 
principle  of  State  insurance. 

The  Chairman:  That  is  in  the  last  amendment.  Since  Mr. 
Bailey's  motion,  Mr.  Boyd  or  somebody  else  made  an  amend- 
ment. 

Mr.  Alexander:   Will  you  state  the  last  amendment  then? 

The  Chairman:  That  we  be  committed  to  the  theory  of  State 
insurance. 

Mr.  Alexander:  That  is  not  my  idea.  I  mean  we  should 
provide  for  State  insurance,  but  with  an  elective  scheme  ap- 
proved as  being  equally  good.  We  want  compulsory  State 
insurance,  but  with  the  option  to  contract  out,  insure  in  private 
or  mutual  companies,  provided  their  rates  are  approved  as  being 
as  low  as  the  State's  rates. 

The  Chairman:   Do  you  accept  that  amendment? 

Mr.  Rohr:  Mr.  Chairman,  I  will  accept  the  amendment.  I 
will  say  I  have  voted  for  twenty-five  years,  and  I  have  never  voted 
for  a  Socialist.  If  I  live  twenty-five  more,  I  don't  think  I  shall 
vote  for  all  the  things  advocated  by  them. 

Mr.  Howard:  I  would  like  to  say  I  am  strongly  in  favor  of 
the  State  insurance  scheme;  that  is,  aside  from  any  constitu- 
tional question.  I  think  one  of  the  most  important  features 
is  the  reducing  of  the  cost.  We  are  going  to  increase  the  rates 
on  the  employers  tremendously,  and  all  the  evidence  has  shown 
the  tremendous  waste  in  private  insurance  companies,  and  figures 
from  Germany,  I  believe,  show  that  nearly  ninety  per  cent,  of 
the  money  paid  in  reaches  the  injured  employee.  As  far  as  the 
question  of  Socialism  is  concerned,  we  must  remember  that  this 
insurance,  compulsory  insurance,  was  brought  up  originally  by 
Bismarck.  I  don't  think  anybody  could  accuse  Bismarck  of 
being  a  Socialist. 

The  Chairman:  Holding  a  Socialist  meeting  at  the  back 
stairway  was  the  origin  of  that  bill,  if  you  want  to  know  the  his- 
tory. 

Mr.  Howard:  As  I  understand,  it  was  to  ward  off  Socialism, 
extreme  Socialism;  and  the  same  situation  is  likely  to  arise  here 
within  fifty  years. 

There  are  many  good  points  in  State  insurance.  For  instance, 
you  could  put  factory  inspection  under  the  State  insurance  de- 
partment. 

Another  objection  to  the  private  companies  which  would  be  of 


202 

immense  value  both  in  more  efficient  inspection  and  in  reduction 
of  cost  of  insurance — the  two  things  naturally  go  together — is 
that  they  are  in  the  business  of  making  money  for  their  stock- 
holders. The  State  insurance  is  not  in  the  business  for  making 
money. 

Mr.  Saunders:  Just  to  show  that  the  Massachusetts  Com- 
mission has  not  come  with  any  scheme,  I  want  to  oppose  what 
Mr.  Alexander  said.  If  we  are  going  to  have  State  insurance, 
regardless  of  the  constitution  or  anything  else,  don't  let  anybody 
get  out  of  it.  The  very  essence  of  State  insurance  is  that  you 
can  take  everybody  in  and  save  your  cost,  and  by  a  system  of 
taxation  save  accumulated  surplus,  because  you  have  got  every- 
body in  it,  and,  whether  or  not  some  individual  is  doing  business 
to-morrow  that  is  to-day,  the  industry  is  there,  and  you  can 
do  without  an  accumulated  surplus.  You  can,  by  a  system  of 
taxation  based  upon  costs  for  a  given  period  of  three  or  six 
months  or  a  year,  collect  immediately  what  is  necessary  to  keep 
your  insurance  going.  If  you  allow  the  big  •  companies  to  con- 
tract out  and  take  something  better,  you  have  got  in  all  the  poor 
companies  and  all  the  poor  risks.  You  are  doing  away  with 
all  the  advantage  of  your  State  insurance.  Now,  if  there  is 
going  to  be  State  insurance,  let  us  put  everybody  in  it  and  keep 
them  there,  then  we  will  get  the  advantages  of  State  insurance. 

Mr.  Alexander:  The  reason  for  making  this  amended 
motion  is  that  I  fully  believe  that  private  companies  can  write 
insurance  at  lower  rates  than  the  State  can;  and  experience — I 
believe  it  is  of  Norway  or  the  Netherlands,  if  I  am  not  mistaken 
— has  shown  that,  where  State  insurance  is  in  force,  private  com- 
panies have  so  adjusted  their  affairs  that  they  have  been  able  to 
write  insurance  cheaper  than  the  State.  I  believe,  under  such 
conditions,  we  shall  likely  find  that  very  little  State  insurance 
wnll  be  written,  but  that  the  insurance  written  by  private  com- 
panies will  be  on  a  very  economical  basis. 

The  State  of  Massachusetts,  to  some  extent,  has  already 
committed  itself  to  this  principle.  I  am  not  a  lawyer.  I  can 
argue  only  on  the  basis  of  common  sense  and  some  logic.  We 
have  a  savings-bank  insurance  department  in  Massachusetts, 
as  you  know,  and  I  believe  the  insurance  department  could  be 
extended  so  as  to  take  in  this  new  insurance. 

Mr.  Gillette:  Now,  Mr.  Chairman,  just  one  word.  Per- 
sonally, at  the  present  time  I  am  in  favor  of  State  insurance. 


203 

I  am  in  favor  of  it  for  two  reasons,  which  I  would  like  to  state. 
I  am  in  favor  of  State  insurance  for  the  Workman's  Compen- 
sation Act  at  the  present  time,  because,  based  on  the  experience 
of  the  old  line  and  private  companies  abroad,  they  have  been 
able  to  write  insurance  for  less  than  the  mutual  has,  or  even  do 
the  business  at  less  cost  to  the  employer  than  the  mutual  com- 
panies. 

Mr.  McEwen:  I  stand  in  favor  of  State  insurance.  I  recog- 
nize the  importance  of  it.  I  recognize  the  political  defects. 
I  live  in  a  city  where  we  own  our  municipal  gas  and  water  plant. 
It  is  one  of  the  few  successful  enterprises  of  its  kind  in  America. 
We,  however,  have  had  a  good  mayor,  who  organized  the  de- 
partment, who  appointed  the  best  men,  no  matter  what  their 
political  views  were  or  whether  they  had  any  political  views, 
and  the  result  has  been  that  he  has  had  a  very  successful  admin- 
istration, but  that  would  not  obtain  under  State  government. 

I  do  not  advocate  immediate  State  insurance.  I  simply  want 
enabling  legislation  now,  so  that  it  will  be  reached  when  we  get 
ready  for  it.  The  Legislature  will  be  more  conservative  than 
the  people  in  enacting  a  State  insurance  scheme. 

Mr.  Boyd:  How  about  the  French  scheme? 

Mr.  McEwen:  I  would  be  committed  more  to  that.  If  you 
remember,  the  burden  of  my  remarks  was  simply  for  each  Com- 
mission to  recommend  to  the  Legislature  an  amendment  along 
that  line. 

All  I  wanted  to  do,  if  we  get  an  enabling  act  passed  to  get 
the  constitutional  amendment  provided  for,  then  we  can  grad- 
ually work  into  it. 

The  Chairman:  May  I  just  tell  you  what  my  views  are  on 
that? 

I  went  to  Europe  with  Mr.  Dawson,  who  went  with  Dr. 
Frankel,  and  the  result  of  that  was  that  he  wrote  a  book  on  the 
conditions  there,  and  he  went  back  with  me.  He  represents 
us  and  the  Federal  Government  in  getting  statistics  on  this  very 
question  of  the  investigation  of  the  scheme  of  insurance  in  every 
country  that  possessed  one. 

We  were  together  every  day,  I  believe,  without  exception,  and 
most  of  the  evenings  on  the  boat,  and  we  discussed  the  different 
forms  of  insurance  every  day  from  one  to  five  or  six  hours,  as  we 
walked  about  the  boat.  I  made  a  memorandum  of  what  we 
concluded   after  all   that   investigation   and   experience.     I   did 


204 

not  agree  with  him  every  time,  but  these  are  my  own  views.     There 
are  only  a  couple  of  pages.     May  I  read  them  in  the  record? 

In  the  first  place  the  risk  must  be  an  insurable  one  in  some 
form,  none  will  doubt,  for  the  following  among  many  other 
reasons : — 

(A)  The  law  becomes  one  of  chance  of  accident,  which  in 
many  industries  is  more  or  less  regular  in  occurrence.  That 
ought  to  be  averaged  over  the  particular  industries  for  long 
periods  of  time,  to  prevent  serious  accidents  from  destroying  the 
particular  industry.  This  can  best  be  done  by  some  form  of  in- 
surance. 

Unless  there  is  some  insurance,  the  financial  standing  of  the 
employer,  and  consequently  his  credit,  will  naturally  be  seriously 
affected. 

(B)  Any  risk  of  the  kind  which  seriously  endangers  the  em- 
ployer must  likewise  endanger  the  employee  and  measurably 
affect  the  employee. 

Now  this  risk,  while  necessarily  insurable,  I  think  compul- 
sory insurance  ought  not  to  be  involved,  for  these  reasons: — 

(A)  It  is  a  regulation  that  even  in  institutional  countries — and 
those  in  Europe,  it  seems  to  us,  from  all  the  experience  we  had — 
is  seriously  a  question  as  a  matter  of  poUcy,  for  the  good  of  the 
cause,  and  will  be  a  good  deal  worse,  I  think,  in  our  country. 

(B)  It  requires  all  to  be  insured,  and  does  not  have  the  com- 
peting interest  to  properly  bring  down  the  rate  of  private  com- 
panies— if  you  are  going  to  have  private  companies  and  public 
companies,  too. 

(C)  It  wields  the  paternaHstic  hand  over  the  one  class  at  the 
expense  of  the  other,  and  would  create  much  friction  in  a  re- 
publican democracy  like  ours.  That  is  important.  It  provides 
some  scheme  of  taxation  in  particular  industries  for  general 
insurance,  which  certainly  would  be  bad. 

(D)  If  provided,  it  would  or  might  become  prohibitive  to  the 
small  employer,  who  might  not  be  able  to  insure  in  private  com- 
panies,— instances  are  frequent  where  such  companies  are  refus- 
ing or  turning  away  the  small  private  employer;  and,  if  his  in- 
surance is  compulsory,  and  there  is  nothing  but  a  private  company 
for  him  to  go  to,  he  is  left  entirely  without  any  insurance.  And, 
in  the  case  where  they  have  both  private  companies  and  public 
companies,  better  risks  are  gotten  by  the  private  companies; 
and  the  fellows  that  are  turned  away,  they  are  going  to  public 
companies. 


205 

(E)  If  required  to  be  in  a  State  institution,  that  institution 
would  be  held  to  be  a  work  of  improvement,  I  think, — internal 
improvement,  I  think,  in  Minnesota  and  in  your  own  State  here, 
the  State  of  Illinois,  and  not  allowed  by  the  constitutions. 

(F)  If  compelled  to  be  either  in  a  mutual  or  private  company, 
the  employer  not  admitted  into  either  would  be  deprived  of  his 
business, — that  is,  would  have  that  tendency,  would  not  go  to 
that  extent. 

Now  it  would  be  unwise,  it  seems  to  me,  therefore,  to  create 
a  system  here  of  compulsory  insurance  where  the  constitution- 
ahty  would  be  very  greatly  a  question,  when  I  think  we  could 
accompUsh  the  same  results  by  the  permissible  insurance  that  I 
have  indicated,  and  which  I  hoped  Mr.  Bailey  would  move,  for 
the  following  reasons: — 

First,  I  think  insurance  ought  to  be  voluntary. 

Second,  I  think  that  the  act  of  the  insured  ought  to  be  condu- 
cive to  the  furtherance  of  the  interests  of  the  employers  and  the 
employees. 

Third,  it  must  allow  mutual  risks  or  any  other  insurance  to 
properly  reduce  costs  and  reasonably  affect  competition. 

What  I  mean  by  any  other  insurance  is  that  we  found  it  in 
some  cases,  in  Scandinavia,  for  instance,  one  case  we  found,  that 
where  they  could  not  compete  with  the  state  institution  of  in- 
surance because  it  did  not  stand  on  the  basis  of  real  business  for 
its  expenses,  but  the  state  provided  its  expenses  in  order  to  give 
it  a  chance  to  compete  with  the  private  companies,  because  it 
could  not  do  business  in  competition  with  them  unless  it  did  have 
some  aid,  and  these  companies,  in  order  to  keep  up  an  existence 
under  the  circumstances,  simply  got  together,  employers,  this 
big  employer  and  that  other  big  employer,  and  said:  "Why,  we 
will  pool  our  interests  of  insurance,  we  will  save  all  the  commis- 
sions for  insurance,  we  will  turn  over  the  business  into  one  com- 
pany, and  therefore  we  will  save  a  big  loss  on  that  proposition. 
We  will  compete  with  the  state,  even  though  it  is  having  ten  per 
cent,  every  year  contributed  out  of  the  state  treasury  to  help 
carry  on  the  business,  because  they  cannot  compete  with  us." 

Fourth,  it  would  allow  a  saving  of  the  whole  or  part  of  the 
procuring  and  administration  of  the  fund. 

Fifth,  it  must  be  properly  supervised  by  the  State  to  secure 
proper  surplus  and  prevent  unnecessary  tying  up  of  capital. 

Now  these  things  can  all  be  accomplished,  I  think,  in  a  system 


206 

of  compensation  with  permissible  insurance,  but  properly  regu- 
lated with  a  number  of  mutual  companies,  so  that  those  mutual 
companies  can  all  the  time  have  a  club  over  the  private  companies. 
I  state  again,  all  the  time,  employers  can  all  the  time  have  the 
control  in  a  situation  like  this. 

Take  that  situation  Mr.  Gillette  has  been  connected  with,  four- 
teen or  sixteen  hundred  of  the  biggest  employers  in  the  State  of 
Minnesota  combined  into  one  association.  Suppose  those  gen- 
tlemen combined  together  and  went  to  the  insurance  companies, 
and  said: — 

'^Now  your  rate  is  all  out  of  reason.  Your  rate  has  been  so 
much;  your  expenses  have  been  so  much;  your  profits  have  been 
so  much.  You  have  raised  the  rate  on  us  three  times  because  of 
this  compulsory  act" — if  they  should  do  that  in  the  future. 

"Now  we  have  got  here  so  many  million  dollars'  worth  of  risk. 
You  are  paying  commissions  to  get  your  business.  You  give  us 
a  fair  rate,  and  we  will  give  you  that  business  for  a  period  of 
five  years,  or  we  will  pool  around,  so  much  in  this  company,  so 
much  in  the  other,  divide  up,  so  that  they  would  not  all  have  the 
full  risk.  That  will  get  rid  of  that  expense  for  you.  If  you 
do  not  do  that,  we  will  make  a  mutual  company.  We  will  turn 
all  the  business  into  the  mutual  company,  and  we  will  save  that 
risk  to  start  with,  and  we  will  hire  experts  to  run  it,  and  we  think 
we  can  compete  with  you." 

And  I  beheve  that  will  have  different  results.  Now  let  me  give 
you  an  illustration  by  way  of  that  in  Sweden.  Sweden  has  a 
state  department  of  insurance.  I  mentioned  a  moment  ago, 
I  think,  the  case  of  the  Scandinavia  risk.  Practically,  it  loses  these 
big  risks  or  any  other  insurance  where  they  could  go  and  say, 
we  have  so  many  hundred  employees,  we  will  insure  in  this 
private  company  because  we  can  get  a  little  bit  better  rate,  or 
some  other  accommodations  that  are  a  little  bit  better.  It 
has  the  effect  of  putting  the  burden  on  the  state  to  cover  the 
whole  administration  of  that  company,  to  cover  the  fee  out  of 
its  general  taxing  power. 

Then  another  feature  is  involved  there,  as  is  involved  in  Nor- 
way. The  police  and  postal  department  is  an  expense  of  the 
government.  They  have  to  supervise  and  collect  information 
on  this  insurance.  They  used  the  institution  of  the  state  there 
for  that  purpose.  Of  course,  that  costs  them  something.  They 
compete  with  the  private  companies.     Those  states  have  not 


207 

been  able  to  drive  the  private  insurance  companies  out  of  business, 
because  they  are  experts.  They  know  how  to  handle  business. 
They  can  do  it  more  economically,  and  they  probably  will  live 
along  for  a  great  many  years,  and  it  is  now  doubtful  if  they  won't 
be  successful.  I  don't  believe  it  could  be  done  here;  but,  if  it 
is  done,  I  think  it  would  be  very  unwise. 

Mr.  Wigmore:  There  are  two  issues.  One  issue  is,  Should 
any  scheme  be  compulsory  on  the  employer?  The  other  is 
whether  State  insurance  shall  be  included  or  the  employer  be 
permitted  to  elect. 

The  Chairman:  The  question  will  be  first  whether  insurance 
shall  be  compulsory  or  permissible,  as  I  understand  it.  Shall 
it  be  compulsory  insurance?  All  in  favor  of  that  proposition, 
let  it  be  known  by  rising.  All  opposed  to  its  being  compulsory 
insurance. 

Mr.  Lowell:  I  am  opposed  to  it  on  the  constitutional  ob- 
jection. 

Mr.  Howard:  No,  that  was  not  the  motion.  It  specifically 
eliminates  constitutionality. 

The  Chairman:  That  is  correct.  It  shall  be  compulsory. 
Now  I  assume  you  are  leaving  out  the  constitution  on  that. 

You  have  another  motion  here.  Now  the  question  is.  Shall 
this  compulsory  insurance  be  part  of  the  institution  of  the  State 
or  a  larger  State  department?  as  I  understand  it. 

Mr.  Dickson:  May  I  offer  a  motion  on  that,  Mr.  Chairman? 

The  Chairman:  We  have  a  motion. 

Mr.  Dickson:  It  is  right  in  line  with  this.  Let  me  read  it. 
It  may  clear  it  a  little.  I  would  move  that  it  is  the  sentiment 
of  this  body  that  it  should  be  a  system  of  compulsory  compen- 
sation, provided  that  an  employer  may  transfer  his  liability  by 
insuring  in  companies  approved  by  a  legally  constituted  public 
body  or  official. 

Mr.  Alexander:  My  motion  would  now  stand  as  follows: 
We  approve  the  principle  of  State  insurance,  with  the  proviso, 
however,  that  the  employers  may  insure  in  private  companies 
or  mutuals  or  otherwise,  if  these  companies  run  under  the  super- 
vision of  the  State  insurance  department,  and  their  rates  are 
approved  as  being  at  least  as  low  as  the  State  rates — 

The  Chairman:  That  is  the  question  we  are  coming  to. 
First,  shall  we  approve  State  insurance?  If  you  say  yes,  then 
will  you  have  any  permission  to  contract  that  out? 


208 

Mr.  Alexander:  We  should  not  vote  on  State  insurance 
without  permission  to  contract  out. 

The  Chairman:  Do  you  approve  the  system  of  compulsory 
State  insurance? 

The  motion  was  carried,  eleven  to  five. 

The  Chairman:  Now  do  you  approve  of  the  idea  of  Mr. 
Alexander's  motion,  added  on  to  that?    What  was  that? 

Mr.  Alexander:  The  right  to  contract  out  by  insuring  in 
private  insurance  companies  or  mutuals,  if  their  rates  are  ap- 
proved by  the  State  insurance  department  as  being  as  low  or 
lower. 

The  Chairman:  All  in  favor  of  that,  let  it  be  known  by  ris- 
ing. 

The  motion  was  carried  by  eleven  to  five. 

Mr.  Gillette  :  I  move  that  it  is  the  sense  of  this  Conference 
that,  in  case  it  shall  be  ultimately  found  to  be  impossible  by 
reason  of  the  constitutional  limitations  to  provide  State  in- 
surance, it  shall  be  recommended  that  the  bill  apply  for  the 
elective  form  of  insurance  with  permission  to  contract  Uability 
out  to  private  companies. 

Mr.  Dickson:  At  all  times  have  solvency  in  mind.  You 
may  say  that  those  men  that  have  the  view  that  providing  State 
insurance  is  not  constitutional,  then  they  will  recommend  a 
system  of  compulsory  insurance,  providing  the  employer  may 
transfer  his  liability  if  it  is  approved  by  a  legally  appointed 
official. 

Mr.  Boyd:  I  think  that  Mr.  Dickson  has  emphasized  the 
real  meaning  of  Mr.  Alexander's  proposition.  Now,  if  the  em- 
ployer puts  his  risk  in  a  company,  it  has  to  guarantee  the  sol- 
vency and  safety  of  the  whole  scheme,  and  he  gets  out  of  the 
absolute  habilities  that  the  law  puts  on  him. 

Mr.  Gillette  :  That  covers  it  as  far  as  you  can  do  it.  Take 
the  Steel  Corporation  of  Minnesota.  I  don't  know  that  the 
Steel  Corporation  should  be  compelled  to  insure,  or  to  contract 
out  its  liability,  provided  there  is  some  provision  made  in  the 
law  by  which,  for  instance,  a  corporation  should  make  a  deposit 
with  the  State  as  to  insure  the  carrying  out  ultimately  of  the 
deferred  obligations  under  the  Compensation  Act.  So  you  would 
not  be  absolutely  compelled  to  insure,  provided  you  put  up  a 
suflficient  guaranty  with  the  State. 


209 

Mr.  Doten  :  Mr.  Chairman,  I  would  like  to  inquire  what  the 
force  of  our  first  vote  was. 

The  Chairman:  Mr.  Doten:  there  is  no  question  but  what 
this  Conference  has  committed  itself  on  the  proposition  of  com- 
pulsory State  insurance,  as  I  understand  it,  with  the  qualifica- 
tions put  on  it. 

Mr.  Doten  :  Compulsory  insurance? 

Mr.  Gillette:  I  did  not  understand  that  that  was  included. 

The  Chairman:  That  was  included  in  that  motion,  and  this 
Conference  has  voted  first  for  compulsory  compensation  as  it 
has  gone  along.  Now  for  compulsory  insurance,  and  then  for 
compulsory  State  insurance. 

The  motion  was  then  put,  and  carried. 

Mr.  Dickson:  I  move  that  a  committee  of  three,  of  which  the 
chairman  be  one,  be  appointed  to  draft  a  bill. 

The  motion  was  carried. 

A  Member:  I  move  that  one  hundred  copies  of  the  report  of 
these  proceedings  be  furnished  by  the  secretary  to  each  Commis- 
sion participating. 

The  motion  was  carried. 

The  Conference  adjourned  imtil  eight  o'clock  of  the  same 
evening. 


210 


Fifth  Session,  Friday,  November  11,  1910,  8  P.M. 

The  Conference  was  called  to  order  by  Chairman  Mercer. 

Number  12.    Repeal  of  Other  Laws? 

Mr.  McEwen:  Personally,  I  am  committed  to  the  idea  of  a 
single  liability,  if  it  can  be  under  the  bill,  if  this  system  of  work- 
man's compensation  can  be  devised  that  will  give  adequate  and 
just  protection  under  the  new  scheme,  wipe  out  everything  else. 

Mr.  Chairman:  This  goes  to  the  question  of  repealing  the 
common  law,  repealing  the  liability  statutes  so  far  as  they  give 
liability,  and  substituting  this. 

Mr.  McEwen:  I  should  say,  while  we  might  commit  our- 
selves to  single  liability,  the  matter  of  repeal  ought  to  be  left 
to  the  judgment  and  discretion  of  the  Commission. 

Mr.  Lowell  :  The  way  this  stands  is  this :  We  have  a  common 
law  which  covers  only  a  few  cases  where  the  amount  is  unlimited. 
We  have  an  employers'  liability  law  which  covers,  besides  the 
common  law,  practically  the  question  of  negligence  of  the  super- 
intendent, not  much  else  than  that.  The  limits  under  that  are 
four  thousand  for  the  man,  if  he  lives;  five  thousand  for  the  fam- 
ily, if  he  dies. 

Now  my  idea  is  that  you  can't  get  a  scheme  which  will  be 
financially  successful  in  Massachusetts  without  taking  off  those 
amounts.  That  is,  you  have  got  to  reduce  down  the  maximum, 
and  the  scheme  which  I  favor  in  Massachusetts  is  to  leave  the 
common  law  and  wipe  out  the  old  employers'  liability  act  and 
put  the  Compensation  Act  in  its  place. 

Now  there  are  several  reasons  for  that.  One  is  this,  that,  if 
you  leave  your  common  law,  you  will  leave  a  chance  of  punishing 
the  employer,  if  he  really  is  grossly  careless  in  something  that  he 
should  have  been  careful  about.  Only  where  practically  he  himself 
is  grossly  careless  or  where  he  has  given  it  over  to  somebody  who 
has  not  taken  care  of  the  business,  for  instance,  the  safety  of  the 
premises  or  something  of  that  sort. 

You  can  recover  in  Massachusetts  under  the  common  law  if 
the  place  is  not  safe,  and  he  has  not  made  it  safe,  and  if  he  has 
not  given  proper  instructions,  and  all  that  kind  of  thing.     If 


211 

you  leave  that  in  the  law,  you  give  a  chance  which,  I  believe,  ought 
to  be  left  in  to  punish  the  employer,  where  he  is  wilfully  negligent, 
— ^where  he  is  a  wilfully  negligent  man  and  does  not  care  whether 
his  employees  are  killed  or  not. 

The  Chairman:  That  would  of  itself  in  our  State  create  a 
liability  for  tort  action,  independent  of  your  other  system,  if  he 
violated  that. 

Mr.  Lowell:  What? 

The  Chairman:  If  he  violated  the  penalty  or  penal  provision, 
that  would  subject  him  to  a  civil  suit  for  damages  for  that  viola- 
tion in  our  State. 

Mr.  Lowell:   Violated  the  penalty,  what  do  you  mean? 

The  Chairivla.n:  In  criminal  law.  For  instance,  any  law 
that  might  be  made,  placing  a  penalty  on  the  employer  for  neg- 
ligence in  a  certain  respect,  gross  negligence  in  a  certain  respect, 
where  it  was  otherwise  limited,  subject  the  employer  to  an  inde- 
pendent tort  action  outside  of  the  criminal  action  because  of 
violation  of  the  duty,  but  I  don't  say  including  the  particular 
fellow  injured,  and  including  the  violation  of  a  duty  to  the  man 
injured. 

Mr.  Lowell:  Our  law  is  not  a  criminal  law  at  all.  You  mean 
the  safety  appliance  act. 

The  Chairman  :  I  thought  you  said  that. 

Mr.  Lowell:  I  said,  if  you  leave  the  common  law  in  Massa- 
chusetts, it  gives  you  a  chance,  it  gives  the  employee  a  chance,  to 
recover  unlimited  damages,  and  so  in  that  way  to  punish  for  gross 
negligence,  or  something  of  that  sort. 

Mr.  Winans:  May  I  ask  to  what  extent  Massachusetts 
applies  the  doctrine  of  assumption  of  risk? 

Mr.  Lowell:  We  have  all  these  doctrines  stronger  in  Mas- 
sachusetts than  anywhere  else,  I  think,  in  this  country. 

Mr.  McEwen:  That  is  where  one  of  them  originated. 

Mr.  Lowell:  Yes. 

Mr.  Winans:  Isn't  that  the  reason  it  is  almost  impossible  to 
recover  under  the  common  law? 

Mr.  Lowell:  The  common  law  only  covers  the  workmen  in 
a  few  cases.  We  have  the  Employers'  Liability  Act  in  addition 
to  the  common  law. 

Mr.  Winans:  Now? 

Mr.  Lowell:  Now,  and  that  covers  a  good  many  more,  so 
that,  of  the  successful  suits  by  the  employee,  I  suppose  seven — 


212 

well,  eight,  out  of  ten,  perhaps — would  be  under  the  Employers' 
Liability  Act  rather  than  under  the  common  law.  But  we  have 
not  done  away  in  Massachusetts  with  the  defence  of  fellow- 
servants  and  contributory  negligence  and  the  assumption  of 
risk. 

Mr.  Winans:  You  have  not  now  got  rid  of  the  fellow-servant, 
contributory  negligence,  and  assumption  of  risk. 

Mr.  Lowell:  None  of  them. 

Mr.  McEwen  :  We  have  in  Minnesota,  but  it  onlj^  covers  the 
railroads  and  railroad  employees  in  the  operation  of  trains. 

The  Chairman:  That  is  the  principal  part  of  it. 

Mr.  Rohr:  May  I  ask,  Mr.  Lowell,  if,  in  anything  contem- 
plated in  the  way  of  compensatory  law,  you  would  rather  abro- 
gate the  liability  laws  before  you  enacted  the  compensatory  law? 

Mr.  Lowell:  Why,  what  the  laboring  people  have  said  to 
us  in  Massachusetts  is  this,  which  is  a  perfectly  fair  deal:  they 
have  said.  We  want  you  to  have  your  repeal  in  such  a  way  that,  if 
the  court  holds  that  your  new  law  is  not  constitutional,  you  shall 
not  wipe  out  the  employers'  liability  law  altogether  and  give  us 
nothing  in  exchange, — which  is  a  perfectly  fair  proposition. 
My  idea  would  be  to  pass  the  Compensation  Act  which  would 
take  the  place  of  our  Employers'  Liability  Act. 

Mr.  Rohr:  Still  leave  the  common  law. 

Mr.  Lowell:  Still  leave  the  common  law.  The  reason  for 
this  is,  as  I  said,  to  give  a  chance  for  a  larger  recovery  where  there 
ought  to  be  one,  and  another  reason  is  that  it  is  very  much 
easier  probably,  both  as  a  legal  proposition  and  a  legislative 
proposition,  to  do  it,  because  they  have  got  a  kind  of  idea  that 
the  common  law  is  sacred;  but  they  don't  like  the  Employers' 
Liability  Act.     It  has  got  a  bad  name  there. 

Mr.  Rohr:  Is  it  your  opinion  that  liability  laws  should  be 
wiped  out  before  you  enact  a  compensatory  law? 

Mr.  Lowell:  Well,  at  the  same  time,  in  the  same  act. 

Mr.  Rohr:  Under  the  same  act? 

Mr.  Lowell:  Yes. 

Mr.  Rohr:  And  then,  if  a  compensatory  law  was  defeated, 
the  other  would  still  remain  in  force. 

Mr.  Lowell:  Oh,  surely. 

Mr.  Rohr:  As  it  is,  so  would  it  remain. 

The  Chairman:  No  practical  difference,  repealing  all  other 
laws. 


213 

Mr.  Wigmore:  What  is  the  motion? 

The  Chairman:  There  is  not  any  motion:  there  is  only  that 
question,  Shall  we  repeal  the  other  laws?  We  have  been  arguing 
it  under  that  theory  with  the  rest  of  the  question,  whether  we  want 
single  or  double  liabiUty. 

Mr.  Schutz:  Mr.  Chairman,  I  presume  that  some  time, 
probably  under  the  thirteenth  unlucky  head,  we  shall  discuss  the 
question  of  election  of  remedies.  I  feel  that  we  may  save  some 
constitutional  difficulties  in  my  own  State  by  such  election,  so 
that  I  don't  feel  that  we  can  finally  settle  this  question  until 
that  is  discussed. 

Mr.  Wigmore:  I  would  agree  with  Mr.  Schutz  on  that  same 
group,  that,  if  that  election  clause  becomes  necessary,  as  it  pos- 
sibly will,  the  whole  thing  is  saved. 

Mr.  Sanborn:  If  you  have  an  elective  act,  the  great  contest 
will  be  when  the  election  shall  take  place,  whether  at  the  time  of 
hiring  or  after  the  accident.  Now  that  will  be  the  contest  on  that, 
but  I  don't  think  anybody  would  advocate  a  double  liability 
for  a  moment;  that  is,  compensation  liability  in  addition  to  the 
common  law  or  statutory  liability. 

Mr.  Saunders:  That  is  what  they  did  in  New  York. 

Mr.  Lowell:  They  have  done  it  in  New  York.  Many  people 
in  Massachusetts  want  it. 

Mr.  Wigmore:  It  would  be  an  alternative,  not  two  remedies. 
If  you  took  one,  you  could  not  have  the  other;  but  the  propo- 
sition is  now,  to  enact  the  law  which  we  are  now  debating, 
and  at  the  same  time  not  to  repeal  the  other. 

Mr.  Lowell:  The  only  alternative  between  the  common 
law — you  probably  don't  understand  our  system  in  Massachusetts. 
We  have  the  common  law,  and  added  to  that  the  employers' 
liabiHty. 

Now,  as  a  legislative  and  also  a  legal  question,  you  can  do  it 
easier  by  leaving  the  common  law,  and  wiping  out  that  Em- 
ployers' Liability  Act,  which  I  think,  as  a  legislative  question, 
is  possible  in  Massachusetts,  or  may  be. 

Mr.  Wigmore:  I  entirely  agree  with  you,  except  that,  in 
States  where  they  do  not  have  a  special  Employers'  Liability 
Act,  you  would  not  need  to  do  what  you  said. 

The  Chairman:  Gentlemen,  I  would  like  to  be  heard,  if 
this  is  a  good  time,  on  that  proposition.  We  are,  of  course,  all 
agreed  that  a  man  should  not  recover  twice.     That    involves 


214 

the  principle  that  there  should  not  be  but  one  liability  in  fact 
for  every  man  each  time. 

Mr.  Bailey:  One  right  of  action. 

The  Chairman:  One  right  of  action.  Now  the  only  way 
that  we  can  make  a  system,  as  it  has  appeared  to  me,  that  will 
be  at  all  satisfactory  in  remedying  the  present  unsatisfactory 
conditions  is  to  make  one  liability  from  the  start.  If  there  was 
not  any  objection  to  the  present  system  of  the  common  law,  the 
present  system  of  liability  act,  we  would  not  be  here  to-day 
and  yesterday. 

Now,  if  we  leave  all  the  evils  that  exist  under  those  two  sys- 
tems, all  the  uncertainty,  all  the  bad  feeling  with  the  uncer- 
tainty that  grows  out  of  that,  all  of  the  waste,  all  of  the  oppor- 
tunities for  chances,  all  the  expenses  of  the  court  that  are  there 
now,  your  insurance  policy,  if  you  have  one,  all  the  risk  of  your 
industry,  you  must  essentially  cover  practically  everything  you 
have  got  now,  your  State  must  stand  practically  all  the  bur- 
dens it  has  now.  Simply  add  this  certainty  to  it,  and  you  wonH 
have  gained  anything.  You  may  cut  it  down  somewhat  by  the 
fact  that  that  would  not  all  go  under  the  old  system,  but  what 
we  find,  I  think,  would  probably  be  that,  in  cases  where  the  lawyers 
could  advise  their  clients  that  there  was  a  good  chance  for  heavy 
verdicts,  you  would  find  that  they  would  sue  under  the  old  sys- 
tem. 

Mr.  Boyd:  That  is  strictly  the  common  law  system. 

The  Chairman:  Yes,  the  common  law  system.  Especially 
is  that  true  if  they  had  as  you  say  in  England,  say  you  could 
assess  it  on  this  side  and  then  lose  on  the  other.  Now  it  seems 
to  me  that  the  weakness  of  the  English  system  lies  more  largely 
in  the  fact  that  it  retains  the  statutory  liability  and  the  common 
law  liability  and  adds  this  other  system  to  it.  More  than  any 
other  one  thing,  aside  from  the  constitutional  question,  I  think, 
the  State  of  New  York  has  made  a  system  that  is  less  scientific 
by  reason  of  that  fact  than  anything  else  in  the  act;  and  I  have 
comimitted  to  writing  here  at  one  time  in  a  little  book  my  own 
views  of  that  and  a  paragraph  that  I  would  like  to  read  to  you, 
because  you  will  get  it  much  more  quickly: — 

"It  is  our  opinion  from  observation  of  the  English  laws  that 
the  weakness  of  that  system  lies  in  the  fact  that  instead  of  one 
liabihty  there  are  three  distinct  liabiUties  elective  to  the  injured, — 
common  law  liability,  the  habilities  act  (which  would  be  repre- 


216 

sented  in  various  of  these  States  by  certain  statutes),  the  com- 
pensation act.  It  is  a  revision  of  the  uncertainties  of  the  old 
system;  it  adds  direct  liabilities  now.  It  leaves  all  the  waste 
of  the  old  system;  it  requires  protection  against  all  the  certain- 
ties. It  does  not  tend  to  lessen  the  cost  in  theory.  It  does  not 
tend  to  make  reasonable  regulations  under  extreme  cases  of  the 
old  system.  It  does  not  simplify  the  differences  between  the 
employer  and  employee  to  further  mutual  advantages  or  lessen 
the  burdens  of  the  State." 

It  seems  to  me  that,  as  soon  as  we  get  one  Uability,  we  can  give 
thewv^prkers  a  higher  rate  if  we  repeal  the  necessity  of  defences 
and  Tjirosecutions  and  costs  of  trials,  uncertainties,  trying  in- 
surance, and  the  uncertainties  of  the  other  systems,  and  that  we 
can  come  down  to  the  place  that  we  ought  to  come  to  on  a  sub- 
ject like  this,  to  a  single  code  that  will  repeal  the  common  law 
as  a  whole  on  this  subject,  repeal  all  of  the  statutes  that  give 
under  liability,  and  make  liability  as  you  want  it  and  as  you 
think  it  honestly  ought  to  be,  as  you  and  I  think  it  ought  to  be, — 
make  your  whole  system  as  easy,  simple,  and  as  speedy  as  you 
can  possibly  make  it. 

Now,  if  you  do  that,  you  will  have  dispensed  with  the  waste, 
you  will  have  dispensed  with  all  of  the  hard-feelings  question, 
all  of  the  annoyances,  all  of  the  expenses  that  you  can  possibly 
get. 

The  only  difference  between  that  and  what  you  are  discussing 
is,  the  fellow  shall  have  the  right  to  elect  to  take  under  some  other 
system  than  this.  I  think  you  ought  to  make  this  system  as 
strong  as  it  ought  to  be.  You  ought  to  make  your  compensa- 
tion as  strong  as  you  can  afford,  as  the  employer  can  stand,  to 
be  equitable  under  all  the  circumstances;  and  then  you  ought 
to  relieve  him  of  the  risks  of  anything  above  that. 

Now  that  is  a  simple  matter.  You  can  do  that  whole  thing 
under  the  one  law.  Then,  if  it  gets  up  to  Judge  Holloway's  court, 
he  would  look  at  it,  and  say  that  as  a  principle  of  constitutional 
construction,  that,  if  we  must  declare  this  law  void  in  the  ele- 
ment that  it  gives  compensation,  it  is  so  connected  with  the 
whole  of  this  code  that  we  will  have  to  hold  that  the  Legislature 
would  not  have  passed  this  code  if  the  compensation  feature 
had  been  left  out.  Therefore,  we  will  hold  that  the  common  law 
and  the  statutes  are  not  repealed;  and  I  think  you  will  have  a 
satisfactory  system. 


216 

Mr.  Hollo  way  :  I  have  some  doubt  in  my  mind  as  to  whether 
you  can  accomplish  what  you  have  stated.  I  have  great  doubt 
as  to  whether  or  not  you  can  supplant  the  common  law  doctrine 
by  a  measure  of  this  character.  In  addition  to  that  I  doubt 
the  wisdom  of  it. 

When  I  left  home,  I  had  given  considerable  study  to  the  New 
York  statutes  and  as  much  as  I  could  to  the  English  statutes. 
Now  I  don't  approve  at  all  of  the  English  system,  but  I  did  ap- 
prove of  the  New  York  system.  It  seems  to  me  a  reasonable 
measure. 

My  theory  of  this  was  just  this,  stated  in  a  few  v»^ords: 
that  by  the  measure  that  we  could  adopt,  if  we  could  adopt^  one, 
we  would  offer  not  only  to  the  employee  who  is  injured,  but  to 
the  employer,  a  scheme  that  was  so  much  preferable  to  the  com- 
mon law  or  statutory  liability  that  ninety  per  cent,  of  them  would 
probably  choose  it.  Where  they  would  not  choose,  it  would  be 
in  such  aggravated  cases  as  that  the  maximum  charge  we  fix 
here  would  not  be  just  compensation  to  the  man  who  was  injured. 

Now  suppose  that  you  rob  the  employer  first  of  his  defence 
of  negligence  of  fellow-servants,  assumption  of  risk,  contributory 
negligence,  and  the  defence  of  fellow-servants,  on  the  one  hand, 
and,  on  the  other  hand,  you  limit  the  amount  that  may  be  recov- 
ered under  the  common  law  of  your  employers'  liability  statutes. 
Now,  when  the  man  is  injured,  he  has  the  alternative  of  proceed- 
ing under  this  Compensation  Act  or  going  into  the  law  courts. 
If  he  goes  into  the  law  courts,  he  may  hope  to  recover  the  maximum 
of  liability,  but  he  understands  in  the  first  instance  that  he  has 
got  to  divide  that  with  his  attorney.  Now,  if  he  can  recover  any 
more  or  a  great  deal  more  under  those  circumstances  than  he 
can  get  under  the  Compensation  Act,  certainly  any  sensible 
man  will  choose  the  Compensation  Act,  which  gives  him  a  cer- 
tainty, to  the  uncertainty  of  going  before  a  jury  and  taking  his 
chances. 

They  are  well  taken  care  of  even  under  the  present  system. 
As  I  have  said  yesterday,  there  is  a  demand  quite  general  on  the 
part  of  both  employers  and  employees  that  will  in  a  measure 
supplant  our  present  one.  At  the  same  time  I  doubt  whether 
it  can  be  made  a  successful  remedy  in  the  first  instance,  and  I 
doubt  the  propriety  of  attempting  to  do  it,  but  I  think  that  they 
ought  to  offer  to  both  parties  a  scheme  that  is  so  much  preferable 
that  they  will  resort  to  it. 


217 

Now  there,  with  the  common  law  liability  omitted  and  only  a 
compensatory  act  upon  the  statute  books,  what  shall  we  do  with 
the  employer,  like  one  I  am  about  to  tell  you  of? 

The  Chairman:  If  you  put  a  penalty  upon  the  one  side, 
you  have  got  to  put  it  upon  the  other.  If  you  put  a  penalty 
upon  the  employee,  as  I  suggested  yesterday,  not  let  him  recover 
when  he  happens  to  be  at  too  gross  fault,  then  you  must  put  it 
on  the  side  of  the  employer.  While,  if  you  leave  it  off  of  both 
sides,  you  will  find  that  the  insurance  rate  will  regulate  the  em- 
ployer better  than  any  criminal  law  will  do  under  these  circum- 
stances, unless  it  be  a  case  of  wilful  injury,  which  the  criminal 
law  will  take  care  of. 

Mr.  Rohr:  Just  a  word,  Mr.  Chairman,  in  that  connection, 
that  in  the  repealing  of  other  laws  and  in  the  enactment  of  com- 
pulsory laws,  isn't  it  reasonable  to  suppose  that,  with  the  adop- 
tion of  what  we  will  call  a  compensatory  law,  that  will  prove  so 
attractive  and  offer  such  inducements  that  it  will  relegate 
those  laws  known  as  liability  laws  at  the  present  time?  In  other 
words,  will  eventually  dispense  with  our  former  laws,  which  are 
and  have  been  acknowledged  to  be  entirely  unfair  to  the  worker, 
rather  than  take  and  wipe  off  those  things,  which  is  a  danger 
in  reference  to  the  case  cited  by  Mr.  McEwen.  Why  not  leave 
them  where  they  are?  and,  if  the  compensatory  law  be  enacted 
by  the  various  States  and  operated  as  it  is  intended  it  shall  op- 
erate, it  will  in  itself  do  away  with  the  other  laws.  That  is  my 
conception  of  the  automatic  or  compensatory  law. 

Mr.  Lowell:  Mr.  Chairman,  if  I  may  add  a  word  here,  I 
have  thought  over  this  question,  which  Mr.  McEwen  has  just 
suggested,  very  carefully,  and  my  first  idea  was  to  have  com- 
pensation, assuming  that  we  could  get  it, — to  have  compensation 
that  will  cover  everything  of  this  character  and  to  cover  the 
tunnel  case;  but,  Mr.  Chairman,  you  can't  do  it  without  provid- 
ing for  a  very  much  higher  compensation  in  such  a  case  as  that 
than  you  can  possibly  bring  into  a  general  compensation  law,  and 
have  the  whole  thing  work.  And,  if  you  put  that  in,  then  you 
have  the  situation  elective,  practically  common  law  injected 
into  your  Compensation  Act.  So  it  seems  to  me  that  leaving  the 
common  law  is  better,  although  I  admit  it  has  serious  disad- 
vantages from  the  point  of  view  of  litigation :  you  leave  the  chance 
of  punishing  that  fellow. 

Everybody  here  wants   to   punish   him,  and   you   leave   that 


218 

chance  because  the  common  law  is  unlimited.  A  jury  that 
could  get  hold  of  that  fellow  in  court  would  give  fifty  thousand 
dollars  against  him.  And  that  is  something  which  no  man 
would  object  to. 

Now  you  have  all  the  schemes  and  all  the  laws  to  cover  that 
case.  It  seems  to  me  that  a  new  law,  if  it  be  added  on  merely 
to  the  common  law,  would  cover  that  case  all  right.  In  order  to 
bring  in  any  particular  provision  in  your  compensation  law, 
you  would  have  to  make  a  provision  for  practically  unlimited 
damages,  which  would  simply  bring  back  the  same  scheme 
under  the  Compensation  Act. 

Mr.  Wigmore:  May  I  ask  a  question,  Mr.  Lowell? 

Mr.  Lowell:  Surely. 

Mr.  Wigmore:  You  say  this  common  law,  if  left,  would  have 
this  effect  of  being  able  to  punish  the  man  in  this  case. 

The  Chairman:  Yes,  that  is  the  point. 

Mr.  Lowell:  I  admit  that  there  is  danger  of  lawyers  getting 
together. 

Mr.  Dickson:  Is  it  necessary,  then,  that  the  employer  take 
advantage  of  the  fellow-servants,  assumption  of  risk,  and  con- 
tributory neghgence? 

Mr.  Wigmore:  But  Mr.  Lowell's  proposition  is  to  leave  this 
risk  in  the  common  law  precisely  the  same  as  it  is. 

Mr.  McEwen:  It  works  both  ways. 

The  Chairman:  Now,  gentlemen,  there  is  another  objec- 
tion. I  don't  want  to  talk  too  much,  but  there  is  one  fellow 
that  I  think  is  concerned  in  this  liability  business,  and  I  notice 
he  has  a  perniciously  active  tendency  of  wanting  to  talk  to  me 
on  this  very  question  about  keeping  all  the  liabilities  in.  So 
the  other  day  I  said  to  him,  *'I  take  it  for  granted  that  you 
could  use  those  liabihties  and  the  chances  in  verdicts  in  your 
arguments  to  settle  with  your  friends,  I  mean  with  the  injured." 

Mr.  Dickson:  You  mean  these  three  laws? 

The  Chairman:  Yes,  the  three  of  them.  ''You  could  have 
all  these  uncertainties  to  argue,  which  would  have  a  better  chance 
to  give  you  a  good  premium  on  the  chances  for  a  settlement?" 
And  he  flushed  a  little,  and  said  that  was  not  his  idea  at  all,  but 
he  ended  the  argument  there;  and  I  came  to  the  conclusion  that 
that  was  true. 

Mr.  Lowell:  Isn't  that  evidence  showing,  Mr.  Chairman, 
the  provision  in  the  law,  Compensation  Act,  that  would  ade- 
quately take  care  of  the  situation? 


219 

The  Chairman  :  Would  it  do  so? 

Mr.  Lowell:  Yes. 

The  Chairman:  No,  because  he  would  have  a  chance  to 
use  the  club  of  the  court  in  litigation,  in  the  Compensation 
Act,  and  the  uncertainties  of  it  along  this  line,  with  other  argu- 
ments that  he  might  use  to  a  man  or  woman  in  a  hospital,  say 
he  might  get  twenty  thousand  or  seven  thousand,  or  he  might 
get  seventy-five  hundred,  but  you  won't  get  it  until  you  have 
been  through  this  court,  it  will  take  six  months.  You  won't 
get  it  until  you  go  through  the  Supreme  Court.  Then  your 
lawyers  are  not  good  enough  to  get  a  record  that  will  not  come 
back  reversed,  and  it  will  be  three  years  before  you  get  it.  Now 
we  will  give  you  forty-five  hundred.  Now  it  is  better  to  take 
it  now. 

Mr.  Schutz  :  I  would  like  to  ask  Mr.  Lowell,  would  his  scheme 
of  common  law  leave  the  question  whether  before  the  accident  or 
at  the  time  of  the  accident  the  employer  or  employee  should  be 
allowed  to  elect  whether  he  would  proceed  under  the  common 
law  or  under  the  compensation  act. 

Mr.  Lowell:  That  is  touching  on  the  question  of  constitu- 
tionality. 

Mr.  Schutz:  Yes,  I  should  think  it  does  include  that.  Your 
idea  is  he  should  have  a  chance  to  elect  at  the  time  of  the  acci- 
dent. 

Mr.  Lowell:  As  I  understand,  I  will  answer  briefly,  although 
it  is  on  the  forbidden  subject.  As  I  understand  our  Massachu- 
setts law,  j^ou  have  got  to  give  them  a  right  to  go  to  the  jury  if 
they  want  to.  You  would  have  both  sides  given  the  opportunity 
of  coming  under  the  compensation  or  taking  their  common  law 
remedy. 

Mr.  Boyd:  I  would  Uke  to  ask  Mr.  McEwen, — he  has  not 
expressed  himself  on  the  question, — will  you  leave  the  common 
law  and  also  the  liability  law  and  the  Compensation  Act,  all  three 
of  them,  side  by  side? 

Mr.  McEwen:  I  beUeve  in  just  a  single  liability  and  criminal 
punishment  to  the  employer,  who  is  wilfully  negligent,  criminally 
negligent,  criminal  punishment  to  the  employee  when  through 
his  negligence  a  fellow-employee  is  injured;  and,  while  I  recog- 
nize that  the  man  that  loses  an  arm  pays  the  penalty  himself  for 
his  negligence,  I  feel  like  penalizing  him  if  he  is  wilfully  negli- 
gent or  criminally  neghgent  by  reducing  the  compensation.     But, 


220 

if  it  should  result  in  death,  I  would  not  make  his  innocent  depend- 
ants suffer. 

Now  that  is  not  new.  On  the  railroads  to-day,  if  an  engineer 
wilfully  and  criminally  violates  the  order  of  the  railroad  com- 
pany, and  it  results  in  a  collision  and  a  number  of  people  are 
killed,  the  engineer  gets  jailed. 

Mr.  Lowell:  He  is  subject  to  conviction  for  manslaughter. 

Mr.  McEwen:  Why  not  make  it  general? 

The  Chairman:  I  think  there  is  a  provision  in  our  statute 
governing  it  that  would  leave  that  remedy  outside  of  the  act. 

Mr.  Rohr:  Mr.  Chairman,  in  this  connection,  under  the 
common  law,  we  have  been  working  prior  to  the  adoption  of  some 
of  the  State  Hability  laws.  Isn't  it  a  fact  that  we  should  make 
these  things  a  subject  for  revision  before  reviewing  the  case  or 
trying  it? 

I  recall  to  mind  one  case  particularly,  which  caused  the  loss 
of  two  eyes.  A  man  had  a  family,  he  was  thirty-five  years  of 
age.  He  sued  in  the  lower  court,  and  under  the  common  law, 
prior  to  the  enactment  of  the  liability  law  of  the  State.  The 
judge,  in  compassion  and  with  magnanimous  sympathy,  tendered 
to  the  attorney  a  check  for  a  hundred  dollars,  took  the  case  from 
the  jury, — and  the  lawyer  stated  to  the  court  that  he  did  not  come 
before  it  pleading  for  sympathy,  he  came  for  justice, — carried  it 
to  a  higher  court,  and  received  a  verdict.  It  was  carried  to  the 
Supreme  Court  of  the  State,  and  the  Supreme  Court  awarded 
twelve  thousand  five  hundred  dollars.  However,  later  on  it 
was  reduced,  and  through  the  sumptuariness  of  the  judges  and 
under  the  common  law  then  in  force  the  man  who  lost  his  two 
eyes  received  the  magnificent  sum  of  thirty-two  hundred  dollars 
out  of  twelve  thousand  five  hundred. 

Now  it  seems  to  me  that  to  abrogate  these  laws  which  take 
away  that  sumptuariness  of  the  judges  is  going  back  to  those 
antediluvian  times  when  human  life  was  the  cheapest  thing 
outside  of  shot  and  shell,  and  I  believe  those  times  date  back 
from  the  time  of  Christianity.  I,  for  the  life  of  me,  can't  see 
where  any  constructive  age  should  go  back  at  all.  If  we  are  going 
to  enact  anything  at  all,  recommend  anything,  it  should  be  to 
displace  that  which  is  now  on  the  statutes  rather  than  remove 
what  is  on  the  statutes  with  something  which  has  not  been  in 
active  operation  in  this  country. 

I  myself  personally  gaze  with  fear  and  trepidation  on  some  of 


221 

these — well,  some  of  the  gods  who  are  clothed  with  robes  of 
justice,  with  due  respect  to  the  court, — I  sometimes  feel  as  though 
my  life  was  in  jeopardy.  I  had  rather  not  appeal  to  a  court  who 
would  take  it  away  from  my  fellow-men,  and  who  will  say  you 
are  guilty,  as  he  did  in  the  case  of  twelve  thousand  five  hundred 
dollars.  When  he  says  you  have  got  my  sympathy  and  here 
is  one  hundred  dollars,  I  don't  like  that  person,  neither  do  many 
of  those  to  whom  I  have  talked. 

The  Chairman:  I  want  to  tell  a  story  on  the  other  side  of  that 
proposition  there,  if  I  may  have  just  a  minute  right  in  that  con- 
nection. A  certain  federal  judge,  who  is  very  well  known  in 
this  country,  told  me  that  he  had  a  court  in  one  of  the  Western 
States,  giving  the  place  of  the  court,  the  term  of  court,  where 
it  happened.  He  found  that  a  lawyer  had  been  offered  forty- 
five  hundred  dollars  to  settle  a  damage  case,  and  refused  it.  The 
client  wanted  to  settle.  They  went  to  trial,  and  recovered  a 
verdict  of  twenty-seven  hundred  dollars.  In  the  mean  time 
it  had  come  to  the  ears  of  the  judge  that  this  lawyer  had  a  con- 
tract for  half  of  the  verdict  that  he  should  get,  and  that  is  the 
reason  why  he  would  not  settle  for  forty-five  hundred  dollars. 
He  asked  the  attorney  to  bring  the  contract  to  court.  He  brought 
it.  He  asked  him  to  step  up  to  the  desk,  and  he  handed  up  the 
contract,  and  the  court  read  it.  He  said:  ''I  see  you  are  en- 
titled to  one-half  of  the  verdict.  Now  they  tell  me  that  you 
have  had  an  offer  to  settle  for  forty-five  hundred  dollars,  your 
client  wanted  to  do  it,  and  you  would  not  do  it  because  you 
wanted  to  get  half  of  that  verdict."  ''Yes,"  he  said,  ''I  don't 
think  that  is  any  of  the  court's  business."  *'Well,"  the  court 
said,  "I  believe  you  are  an  officer  of  this  court.  I  shall  make 
it  my  business.  Now,  if  you  want  to  take  two  hundred  dollars 
for  your  fees  in  this  case,  give  the  client  twenty-five  hundred 
dollars.  We  will  rest  right  there  on  it.  If  you  don't,  I  shall 
see  that  such  proceedings  are  taken  as  I  think  are  proper  under 
the  circumstances."     The  fellow  said,  "Give  me  the  two." 

Mr.  Rohr:  In  that  connection,  Mr.  Chairman,  I  want  to 
say  that  I  would  have  been  honored  in  clasping  that  judge's 
hand. 

Mr.  Howard:  Mr.  Chairman,  what  you  said  was  in  line  with 
what  I  was  going  to  suggest,  whether  it  would  not  be  possible  to 
provide  that  in  suits  brought  under  the  common  law,  if  the  com- 
mon law  is  left,  it  should  be  provided  that  any  judgment  be  paid 


222 

to  the  court  and  turned  over  by  the  court  to  the  plaintiff,  and 
that  the  court  should  fix  the  fee  of  the  counsel. 

Mr.  McEwen:  I  don't  suppose  there  would  be  so  many  cases 
under  common  law  if  some  sort  of  arrangement  as  that  could 
be  effected.  The  worker,  the  injured  workman,  will  not  volun- 
tarily, I  think,  want  to  go  into  court  and  take  his  chances  before 
a  jury  on  an  uncertainty,  when  he  has  the  certainty  under  the 
Workmen's  Compensation  Act,  unless  he  was  influenced  by 
some  over-zealous  attorney  who  sees  in  the  case  an  opportunity 
for  a  good  fee. 

Mr.  Sanborn:  Just  a  word  I  would  like  to  say  on  this  sub- 
ject. Now  we  have  had  more  trouble  with  this  subject  that 
we  are  discussing  now  than  we  have  had  with  any  other  subject 
we  have  dealt  with  from  the  start,  and  I  think  those  who  have 
been  present  at  all  the  other  conferences  will  agree  with  me 
there  has  been  wider  differences  of  opinion  how  we  are  going  to 
take  this  very  subject  than  on  any  other.  I  very  firmly  be- 
lieve that  we  must  absolutely  do  away  with  all  the  other  liabil- 
ities in  this  matter,  absolutely  do  away  with  them  in  some  shape. 

Now,  whatever  way  it  is,  we  must  reach  some  conclusion 
whereby  this  takes  the  place  of  them,  and  need  not  anybody 
be  alarmed,  because  it  is  easy  enough  to  frame  a  law  so  that,  if 
this  law  that  we  undertake  to  pass  is  held  unconstitutional,  it 
will  not  repeal  the  other  laws.  They  will  continue  in  force. 
But  here  is  one  thing  that  you  must  guard  against.  There  is 
a  tremendous  waste  to-day  that  you  have  got  to  take  into  con- 
sideration. Now,  if  you  are  going  to  have  common  law  liability, 
if  you  are  going  to  give  the  employee  the  right  to  elect  some 
time  after  the  accident,  the  employer  in  order  to  protect  him- 
self has  got  to  keep  up  his  whole  force  of  investigators.  He 
has  got  to  understand  who  is  to  blame  on  each  and  every  oc- 
casion, and  that  force  he  has  got  to  keep  in  existence.  He  has, 
naturally,  insurance,  that  is  a  liability  to  be  undertaken. 

Now  it  won't  do  to  do  that.  Now  what  is  the  object  in  doing 
that?  Now  what  is  to  be  gained  in  these  cases?  We  hear 
sometimes  where  a  man  is  so  injured  and  the  employer  solely 
negligent,  and  he  recovers  a  large  verdict.  In  our  State  it  is 
about  twenty-five  thousand  dollars,  I  believe,  which  is  the 
largest. 

The  Chairman:  Forty  thousand  is  the  largest. 

Mr.  Sanborn:  He  recovers  that,  but  one  man  gets  the  bene- 


223 

fit.  Now  when  you  put  that  under  the  compensation  system, 
then  here  is  a  ease  where  the  man  recovers  under  the  employ- 
ers' liability.  Now  in  this  case  we  are  going  to  come  around 
compensation  for  it,  even  if  he  is  responsible  himself.  Now,  in 
order  to  understand  this,  you  must  remember  that  the  em- 
ployer can  stand  about  so  much  of  a  burden.  If  you  are  going 
to  put  this  additional  burden,  so  as  to  give  this  exceptional  ground 
of  more  chances  of  getting  the  forty  thousand,  as  my  friend  said, 
or  twenty-five  thousand,  what  is  the  result?  Doesn't  it  natu- 
rally follow  as  economic  law  that  the  great  bulk  must  take  less, 
in  order  to  let  him  have  more?  How  can  you  get  around  that 
proposition? 

If  you  can  make  compensation  to  the  great  mass,  as  in  all 
fairness  you  ought  to,  if  you  are  going  to  keep  up  this  and  give 
this  one  occasional  one  an  opportunity  to  get  a  great  big  verdict, 
do  you  think  that  is  the  proper  way? 

Now  there  is  another  thing  that  I  think  you  should  take  into 
consideration  there.  One  of  the  great  troubles  to-day  of  unrest 
is  the  fact  that  Harry  Brown  over  there  recovers  five  thousand 
dollars.  John  Jones  over  here,  he  is  injured  about  the  same  way, 
can't  see  any  difference,  don't  get  a  cent.  Now  that  is  robbery. 
That  is  not  a  fair  deal.  When  you  bring  the  thing  down  so  there 
is  an  absolute  stated  rule  they  can  understand  and  figure  out 
and  know  what  it  means,  j^ou  are  going  to  get  a  better  system 
in  vogue,  you  are  going  to  have  less  high  feeling  of  distrust,  less 
feeling  that  for  some  reason  this  fellow  had  the  advantage  and 
was  treated  better;  and  all  these  things,  I  say,  we  must  take 
into  consideration. 

Now  I  don't  know  whether  I  understood  my  friends  from 
Massachusetts  distinctly  to  say  that  it  is  impossible  to  con- 
tract at  the  time  of  hiring,  whether  it  is  express  or  implied  that 
an  employee  can  waive  his  right  to  claim  any  other  compensa- 
tion than  under  the  act.  Now  we  feel  very  confident  on  that 
proposition,  that  at  the  time  he  hires  out  he  can  agree  at 
that  time,  as  part  of  his  contract  to  hire,  to  accept  this  com- 
pensation in  lieu  of  all  other  compensations,  so  that  the  em- 
ployer knows  that,  if  he  has  so  many  men  in  there  and  there  is 
nobody  got  in,  they  are  all  under  the  Compensation  Act,  and 
he  stands  squarely  upon  that  footing. 

I  feel  confident  that,  when  the  laboring  man  understands  the 
system  and  gets  to  work  on  it,  we  shall  have  no  trouble,  because 


224 

they  will  feel  that  they  are  getting  so  much  more  than  they  were 
under  the  old  system  that  they  will  never  want  to  go  back  to  it. 
That  is  the  whole  proposition  there;  but  we  must  discourage 
the  idea  that  we  are  going  to  protect  one  occasional  man  on  this 
large  verdict,  because  I  can't  see  how  you  can  do  that  without 
taking  from  the  mass  enough  to  make  up  the  great  loss.  I  mean 
the  loss  that  will  be  occasioned  thereby. 

Mr.  Bailey:  I  would  like  to  ask  the  gentleman  a  single 
question.  There  was  something  said  about  repealing  the  com- 
mon law  or  leaving  it  out.  You  stated  that  they  could  be  allowed 
to  contract  out  and  leave  the  common  law  right. 

Mr.  Sanborn:  We  provided   that   as   part   of   the   contract. 
Make  it  up  by  repealing  the  common  law  act.     We  provide  that 
this  takes  the  place  of  everything  else. 
Mr.  Bailey:  Whether  they  agree  to  anything  or  not. 
Mr.  Sanborn:  Leave  that  right  to  contract  absolutely  free. 
Mr.  McEwen:  When? 
Mr.  Sanborn:  At  the  time  of  hiring. 

Mr.  Bailey:  If  they  don't  agree  then,  they  have  the  common 
law  right.     If  they  don't  agree  to  this  scheme,  they  have  the 
common  law  right. 
Mr.  Schutz:  Then  you  don't  repeal  the  common  law? 
Mr.  Sanborn:  No,  we  don't  repeal  it;    but,  if  it  is  going  to 
be  compulsory,  and  we  can  make  it  that,  which  I  am  not  alto- 
gether prepared  to  admit  or  to  deny  on  that  proposition, — if  we 
are  going  to  do  that,  why,  it  should  absolutely  take  the  place  of 
everything  else. 
The  Chairman:  It  would  be  your  judgment  that  it  should? 
Mr.  Sanborn:  Yes.     One  other  suggestion  in  connection  with 
this,  to  meet  the  case  my  friend  refers  to  here, — if  we  deem  it 
advisable,  why  shouldn't  we  do  just  as  we  do  to-day  in  a  great 
many  of  our  laws?    For  instance,  we  have  the  Wisconsin  law  for 
the  railroad  companies.     Supposing  fire  started  by  reason  of  the 
negligence  of  not  cleaning  up,  that  is  a  double  liability.     Then 
couldn't  we  also  make  a  double  compensation  against  the  man 
who  is  wilfully  negligent? 

Mr.  McEwen:  Do  you  know  what  our   Legislature  does   in 
those  cases? 
Mr.  Sanborn:  What  is  that? 

Mr.  McEwen:  It  holds  the  engineer  for  not   taking  care  of 
the  spark  arrester  in  the  smoke-stack,  and  allowing  it  to  get  out 


225 

of  order.  Suppose  there  is  a  fire,  a  forest  fire,  and  the  engineer 
is  liable  to  arrest  by  reason  of  this. 

Mr.  Sanborn:  Why  wouldn't  that  be  better  than  to  leave 
the  common  law  to  punish  him?  I  think  we  could  work  that  out 
just  the  same. 

Mr.  Lowell:  I  think  double  liability  is  enough  in  the  common 
cases. 

Mr.  Sanborn:  Well,  it  might  not  be  enough,  but  we  could 
fix  it  in  cases,  so  it  would  be  enough  so  as  to  deter  the  man  from 
taking  such  chances  as  that  fellow  did. 

The  Chairman:  How  about  your  criminal  law  on  that  fellow? 

Mr.  Sanborn:  I  have  not  so  much  faith  in  the  criminal  law 
as  in  something  that  reaches  his  pocket-book. 

Mr.  McEwen:  Mr.  Chairman,  I  want  to  say  this,  it  is  hard 
to  prove  in  these  cases  who  was  the  cause  of  the  death  of  the 
man.  With  the  question  of  the  fellow-servant  here,  it  is  difficult 
to  get  them  to  testify,  because  their  jobs  are  in  jeopardy  and 
they  have  to  work. 

The  Chairman:  They  are  the  closest  things  of  any  in  a  law- 
suit that  is  contested,  I  can  tell  you  that. 

Mr.  Boyd  :  I  think,  Mr.  Chairman,  we  can  meet  Mr.  Mc- 
Ewen's  proposition. 

While  we  have  been  thus  far  speaking  of  the  employers  who 
are  more  or  less  negligent,  I  think  we  should  learn  something 
from  what  they  do  in  Germany,  and  I  am  very  much  delighted 
to  see  Mr.  McEwen  take  the  position  he  does. 

Now  it  certainly  is  very  difficult — it  is  impossible,  it  seems  to 
me — to  have,  say,  three,  common  law  remedies,  statutory  lia- 
bility, and  the  Compensation  Act,  all  side  by  side,  because  then, 
the  employer  insuring,  his  liability  is  multiplied  and  his  rate  raised 
beyond  reason.     The  rate  of  insurance  will  rise  just  the  same. 

Mr.  McEwen  :  I  want  to  say  this,  in  spite  of  the  defect  of  the 
Belgian  law,  of  the  Austrian  law,  and  of  the  French  law,  of  every 
workingman  we  consulted  relative  to  the  operation  of  the  law  and 
its  defects  I  invariably  asked,  "Well,  which  would  you  rather 
have,  the  old  employers'  liability  or  the  present  laws  of  com- 
pensation?" And  they  without  any  exception  said  the  present 
law,  and  they  would  not  go  back  to  the  old  scheme.  I  rather 
think  it  would  work  out  this  way  in  due  time  under  any  kind 
of  compensatory  act  we  might  have  in  this  country. 

Mr.  Bailey:  In  order  to  get  this  thing  before  us,  I  would  make 


226 

this  motion:  that  it  is  the  sense  of  the  meeting  that,  if  it  is  possi- 
ble, the  common  law,  what  we  call  employers'  liability  or  statu- 
tory laws,  would  be  suspended  during  the  existence  of  the  com- 
pensation law,  which  means  repeal,  if  it  is  constitutional. 

Seconded  by  Mr.  Howard. 

The  Chairman:  Anybody  want  to  speak  about  that? 

A  Member:  I  wanted  to  state  the  double  remedy,  if  I  might 
be  permitted  to  object,  is  to  penalize  the  employer,  and  so  pre- 
vent him  from  doing  the  things  which  he  ought  not.  Now,  in 
doing  that,  it  is  spoken  of  as  retaining  the  old  common  law.  Now 
that  covers  the  act  which  the  employer  is  personally  responsi- 
ble for,  and  also  an  act  which  he  has  absolutely  no  control  over, 
no  moral  responsibility  for  at  all, — namely,  acts  of  certain  of  his 
agents,  who  might  be  the  cause  of  the  accident. 

The  common  law  goes  to  the  extent  of  covering  any  agents 
with  any  power  or  authority  or  control  over  anybody  else.  So 
it  makes  the  blacksmith  and  his  helper  master  and  servant;  and 
what  I  want  to  suggest  is  this,  that,  if  there  is  any  idea  of  penal- 
izing the  employer,  you  should  divide  that,  and  you  should  leave 
the  responsibility  only  where  he  has  been  personally  negligent, 
and  cut  out  all  his  agency  responsibilities.  There  you  get  direct 
incentive  to  the  emplo3^er  to  see  that  his  plant  is  properly  equipped, 
and  to  see  that  his  superintendent  is  properly  coached  and  all  the 
personal  duties  of  the  master  are  enforced,  and  he  should  be  penal- 
ized if  he  fails  to  carry  out  those  personal  duties,  but  he  should 
not  be  held  responsible  for  the  acts  of  his  agents,  as  well  as  hold- 
ing him  responsible  for  the  acts  of  these  same  agents  under  the 
compensation  law. 

I  suggest  that,  if  you  leave  the  common  law  in  at  all,  the  double 
remedy  in  at  all,  you  restrict  it  to  the  personal  act  of  the  master, 
and  in  that  way  it  will  result  in  penalizing  the  master  where  he 
is  morally  to  blame  only. 

The  Chairman:   Are  you  ready  for  the  question? 

Mr.  Rohr:  Mr.  Chairman,  before  you  settle  that,  I  want 
to  understand  whether  it  has  to  do  with  going  back  to  the  system 
in  which  it  relieves  the  master,  which  may  result  in  the  death  or 
injury  through  negligence  of  a  fellow-servant,  done  in  obedience 
to  him  of  instructions  or  orders  given  by  the  employer  or  any 
person  who  has  authority  to  direct  him  doing  any  such  act  under 
the  rules  and  regulations  for  the  government  of  such  employee. 

The  Chairman:  The  motion  does  include  that,  as  I  under- 
stand. 


227 

The  motion  includes  disposition  of  the  common  law,  statu- 
tory liabilities,  and  the  substitution  of  a  workmen's  compen- 
sation act  so  far  as  it  remains  in  force. 

Mr.  Rohr:  It  has  nothing  to  do  with  the  foreman  direct? 

The  Chairman:  No,  it  cuts  that  out,  because  that  goes  away 
with  the  common  law  department. 

The  Chairman:  Are  you  ready  for  the  question? 

The  motion  was  carried. 

The  Chairman:  A  rising  vote  I  would  like  to  have,  if  there  is 
any  question. 

Mr.  Rohr:  May  I  have  the  motion  read? 

The  motion  was  thereupon  read  as  follows  by  Mr.  Bailey: 
In  order  to  get  the  thing  before  us,  that  it  is  the  sense  of  the 
meeting  that,  if  it  is  possible,  the  common  law,  what  we  call  em- 
ployers' liability  or  statutory  penalty  laws,  would  be  suspended 
during  the  existence  of  a  compensation  law,  which  means  repeal 
if  it  is  constitutional. 

The  motion  was  thereupon  duly  carried. 

Mr.  McEwen:  I  want  to  say  in  explanation  of  my  vote  that 
I  live  in  Minnesota  where  we  have  not  such  favorable  legisla- 
tion on  employers'  liability  as  they  have  in  Ohio. 

Mr.  Boyd:  We  are  not  taking  away  the  proposition  that  the 
employer  is  to  be  penalized  under  the  criminal  law  for  malicious 
negligence. 

Mr.  Dickson:  That  goes  without  saying. 

Mr.  McEwen:  It  is  not  specific  enough. 

Mr.  Alexander:  I  want  to  call  attention  to  one  subject 
that  might  be  discussed  and  settled  here,  that  is  with  reference 
to  the  question  of  compensation  of  the  lawyer,  which  is  pointed 
out  as  one  of  the  great  defects  of  the  working  of  the  present  law. 
Now  can  it  be  provided  for,  and  is  it  the  sense  of  this  meeting  to 
provide,  that  in  all  these  cases,  if  taken  into  court,  the  fee  of  the 
lawyer  shall  be  such  as  the  judge  decides? 

The  Chairman:  When  you  have  disposed  of  the  common 
law,  if  your  recommendations  are  followed,  which  I  suppose 
would  rid  most  of  that  question,  it  might  be  possible,  might  be 
necessary,  might  be  advisable  anyway,  to  limit  the  percentage 
in  this  act,  but  I  think  you  want  to  proceed  very  carefully  in 
that.  You  don't  want  to  get  the  laboring  man  in  such  a  po- 
sition,— for  instance,  the  first  six  months  of  this  act,  some  man 
files  a  claim,  the  attorney  for  the  employer  raises  the  consti- 


228 

tutionality  of  this  law,  that  claim  may  be  and  is  likely  to  be  for 
seventy-five  hundred  dollars  or  for  ten  dollars  a  week  for  three 
months.  The  question  can  be  raised  just  the  same,  and  it  may 
go  to  the  Supreme  Court;  and  who  is  going  to  try  that?  Who 
is  going  to  fight  for  the  preservation  of  that  law?  Are  you, 
gentlemen,  going  to  join  in  and  fight  it,  or  what  is  going  to  become 
of  it? 

Mr.  Sanborn  :  When  a  similar  situation  arose  with  our  Com- 
mission and  one  of  its  decisions  was  attacked,  the  State  de- 
fended it. 

The  Chairman  :  I  think  it  ought  to  myself. 

Mr.  Sanborn:  That  is  the  poUcy. 

The  Chairman:  Now  that  may  raise  the  question  as  to 
whether  or  not  you  should  have  an  attorney  prosecuting  these 
claims  where  they  need  a  lawyer.  That  is  a  thing  I  have  had  in 
mind,  but  I  should  have  to  rule  that  out  of  order  unless  there  is 
a  vote  otherwise,  because  you  have  a  definite  program  here,  and 
the  next  thing  in  order  is  thirteen. 

Mr.  Alexander:  We  could  hardly  take  it  up  after  thirteen. 

The  Chairman:  What  is  the  motion?    We  will  pass  on  it. 

Mr.  Alexander:  In  case  it  should  be  considered  unconsti- 
tutional to  do  what  we  have  provided  for,  should  we  not,  for  the 
benefit  of  the  committee  that  is  going  to  draft  the  bill,  provide 
that  the  common  law  employers'  liability  will  be  left  in  and  that 
the  attorney  should  be  limited  to  such  fee  as  the  judge  decides? 

The  motion  was  seconded. 

Mr.  Brown:  The  New  York  statutes,  I  think  they  have  a 
very  commendable  provision,  and  I  think  the  language  is  most 
excellent, — and  it  seems  to  me  quite  in  accord  with  what  you  are 
doing  here,  that  all  the  benefit  should  go  as  far  as  possible  to 
the  injured  employee  and  his  dependants,  other  than  as  it  is 
now,  for  the  benefit  of  the  attorney.  We  would  find  the  act 
most  beneficial  if  there  was  a  provision  limiting  it  to  a  percent- 
age or  leaving  the  lawyer's  charge  to  the  court. 

Mr.  Dickson:  Mr.  Chairman,  I  would  like  to  make  a  mo- 
tion.    I  don't  know  whether  I  can  frame  it  in  legal  language. 

The  Chairman:  There  is  a  motion  made,  unless  you  make 
an  amendment. 

Mr.  Dickson:  Let  me  read  it: — 

"Attorney's  lien  in  a  claim  of  an  attorney  at  law  for  services 
in  securing  such  recovery  or  for  disbursements  shall  be  an  en- 


229 

forceable  lien  on  such  recovery  as  long  as  the  amount  of  same 
be  approved  in  writing  by  a  justice  of  the  Supreme  Court,  or  in 
case  same  be  tried  in  any  other  court,  before  a  justice  presiding 
at  such  trial." 

I  think  that  such  a  provision  as  that  will  be  very  desirable 
in  any  law  that  we  might  pass.  I  would  not  advocate  putting 
any  definite  limit  on  it.  That  ought  to  be  left  to  the  fixing  of 
the  judge. 

The  Chairman:  What  are  you  going  to  do?  I  think  the 
board  of  arbitration,  if  you  have  one  as  you  indicated,  where 
the  matter  comes  up,  are  ready  to  settle,  and  it  does  not  get  near 
the  court  at  all.  Unless  you  give  the  board  of  arbitrators  the 
right  to  fix  that,  what  are  you  going  to  do? 

Mr.  Dickson:  Well,  I  would  say,  don't  frame  it  to  be  a  lien 
on  the  recovery  unless  approved  by  one  of  the  Circuit  Court 
judges. 

Mr.  Rohr:  The  court  of  equity? 

Mr.  Dickson:  Yes. 

Mr.  Lowell:  Wouldn't  the  board  of  arbitration  be  sensible 
enough  to  do  it? 

The  Chairman:  They  know  what  has  been  done  in  the  case 
better  than  anybody  else. 

The  Chairman:  Are  you  willing  to  accept  the  idea  that  the 
tribunal  before  which  it  is  first  tried,  whether  a  board  of  arbi- 
tration or  a  court,  shall  ultimately  fix  the  fee? 

Mr.  Dickson:   Yes. 

The  Chairman:  I  just  want  to  ask  one  question  there  to  make 
that  clear.  In  these  cases  there  ought  not  ordinarily  to  be  an 
attorney.  It  ought  to  be  so  simple  that  it  won't  be  necessary. 
Now  I  think  you  ought  to  say  that,  if  he  asks  for  more  than  a 
certain  amount,  a  certain  percentage,  that  will  have  to  be  done, 
unless  you  think  it  would  complicate  it  too  much. 

Mr.  Dickson:   I  think  it  would. 

The  Chairman:  I  simply  want  to  make  the  suggestion  that 
every  claim  that  is  filed,  where  an  attorney  is  to  go  through  it, 
you  may  have  a  considerable  lot  of  detail  there  that  would  in- 
volve trouble,  before  any  court  could  fix  compensation. 

Mr.  Dickson:  This  says  he  must  tax  every  one  but  the  at- 
torney.    He  cannot  legally  collect. 

The  Chairman:  Has  no  lien? 

Mr.  Dickson:  Yes. 


230 

The  Chairman:  As  far  as  the  lien,  I  believe  you  are  right 
about  that.     All  right.     Anybody  want  to  speak  to  the  motion? 

Mr.  McEwen  :  May  I  ask,  if  you  have  a  board  of  arbitration, 
whatever  the  board  that  meets  on  this  case  may  determine,  it 
is  not  necessary  to  have  a  member  of  the  bar. 

Mr.  Dickson:  No. 

Mr.  McEwen:  Any  layman  can  do  it. 

The  Chairman:  It  ought  to  be  fixed  so  that  there  will  be  a 
limit  on  it. 

Mr.  McEwen:  I  rather  like  the  German  idea.  The  secre- 
taries of  societies  appear  before  the  justice  of  the  peace  and 
plead  cases,  and  they  are  developing  a  fine  lot  of  fellows  over 
there.  I  have  personally  formed  a  great  deal  of  fondness  for 
some  of  them.  The  German  societies  have  a  number  of  schools 
where  men  deprived  of  opportunities  in  early  days,  are  now 
taking  courses  in  insurance  to  get  familiar  with  the  law  on  it, 
and  it  may  help  to  develop  a  lot  of  our  secretaries  of  trades-unions 
and  secretaries  of  beneficial  societies. 

The  motion  was  carried. 

The  Chairman:  There  has  been  a  motion  passed  here  that 
requires  the  chairman  and  secretary  to  formulate  under  each 
of  these  special  advices  the  results  of  our  practical  agreement. 
You  have  placed  on  me  the  burden  of  sitting  on  this  committee 
to  draw  that  bill,  and  I  think  that  I  ought  to  be  relieved  from 
the  other.  I  think  the  secretary  simply  ought  to  be  permitted 
to  do  that  himself. 

Mr.  Dickson  :  I  move  to  reconsider  the  vote  on  that. 

The  motion  was  duly  seconded  and  carried. 

Mr.  Dickson:  I  move  that  that  really  devolve  on  the  secre- 
tary alone. 

Motion  was  duly  seconded  and  carried. 

The  Chairman:  All  in  favor  of  adjourning  till  nine  o'clock 
to-morrow  morning. 

The  motion  was  duly  carried. 

The  Conference  then  adjourned  until  Saturday,  November  12, 
at  nine  o'clock  a.m. 


231 


Sixth  Session,  Saturday,  November  12,  1910,  9  A.M. 

The  Sixth  Session  of  the  Conference  was  called  to  order  at  nine 
o'clock  A.M.  by  the  chairman,  Mr.  Mercer. 

The  Chairman:  Gentlemen,  are  we  ready  to  begin? 

Your  motion,  as  it  stands  here  now,  is  that  this  Drafting  Com- 
mittee consist  of  three,  and  the  chairman  should  be  one.  I  had 
hoped  to  not  be  on  that  committee,  and  to  appoint  some  member 
from  Massachusetts  on  that,  for  two  reasons.  You  know  we  regard 
Massachusetts  in  the  West  as  having  about  as  able  a  bar  as  any 
State  in  the  Union.  I  would  not  say  the  most  able,  because  that 
might  flatter  them.  At  least,  the  way  it  is  reflected  in  our  courts 
leads  us  to  consider  that  it  is  of  excellent  standing,  and  we  want 
the  benefit  of  the  opinions  of  the  gentlemen  from  that  State. 
And,  in  the  second  place,  we  know  that,  in  addition  to  the  work 
they  have  done,  Massachusetts  was  more  responsible  than  any 
other  State  for  calling  this  particular  meeting  together.  The 
committee  is  limited  to  the  three,  and  I  think  that  is  a  good  work- 
ing number,  considering  the  question,  which  is  a  practical  one, 
of  getting  the  committee  together,  which  is  one  of  the  things 
that  has  to  be  considered,  together  with  the  question  of  the  in- 
terests which  they  represent  here.  So  I  would  like  to  name 
the  committee,  to  have  the  privilege  of  naming  the  committee 
from  the  West,  to  let  them  draft  it  up,  and  having  such  a  confer- 
ence as  we  will  have  this  afternoon  with  the  other  gentlemen, 
and  then  within  a  few  days  they  could  send  a  draft  to  Mr.  Bailey, 
Mr.  Lowell,  Mr.  Saunders,  Judge  Holloway,  and  Mr.  Boyd,  and 
hold  the  draft  up  for  a  few  days  for  your  criticism.  I  would 
like  to  make  that  suggestion.  We  may  be  able  to  get  some  very 
valuable  suggestions  this  afternoon.  That  is  my  thought.  And 
I  considered  that  by  putting  Dean  Wigmore  and  Judge  Sanborn 
on  that  committee  they  will  be  so  near  together  that  we  can 
get  at  it  some  day  next  week  and  get  it  out.  I  could  not  go 
to  the  Atlantic  Coast, — I  have  been  so  much  away  this  year  on 
this  particular  matter, — and  I  think  the  time  that  we  would 
spend  in  travel  we  could  spend  to  better  advantage  if  we  ap- 
pointed members  located  near  one  another,  and  they  ought  to 
be  able  to  draft  such  a  bill.  In  accordance  with  this  suggestion, 
I  propose  that  we  get  a  few  of  these  gentlemen  together  some 


232 

time  this  afternoon  after  we  adjourn,  and  that  we  make  our 
draft,  and  that  we  submit  a  copy  of  it  to  all  the  lawyers  on  the 
Commissions  that  are  here,  and  that  they  take  it  up  within  as  short 
a  time  as  possible,  and  return  it  with  any  suggestions  they  may 
be  able  to  make.     Does  that  meet  with  your  approval? 

Mb.  Lowell:  Mr.  Chairman,  that  thoroughly  meets  with 
my  approval.  Of  course,  the  practical  thing  is  that  we  must 
get  this  thing  as  fast  as  we  possibly  can.  This  is  a  matter  we  are 
all  obliged  to  report  on  by  next  January,  and  it  is  my  intention, 
and,  I  think,  the  intention  of  our  Commission  to  get  the  act 
into  fairly  complete  shape,  and  then  have  hearings  as  to  it.  We 
should  want  to  get  that,  if  we  could,  certainly  by  the  first  of 
December.  That  would  only  give  us  a  month  for  having  hear- 
ings and  thus  getting  criticisms  and  so  on.  Of  course,  to  get 
this  thing  through  eventually  is  a  legislative  matter;  but  in  order, 
after  it  has  become  a  law,  to  make  it  work  well,  we  should  get 
both  sides,  both  the  employers  and  the  employees,  get  them 
familiar  with  the  subject,  and  get  them  together.  Perhaps  they 
won't  get  together,  but  we  should  try  to  get  them  much  nearer 
than  they  are  at  the  start.  In  Massachusetts  we  have  had 
workmen's  compensation  acts  suggested  for  a  good  many  years, — 
the  employees'  side  of  it.  The  labor  unions  are  famiUar  with  the 
proposal,  and  are  thoroughly  committed  to  the  main  features  of  the 
act.  They  may  differ  in  details,  but  the  employers,  by  and  large, 
don't  know  as  much  about  it  as  the  trade-union  leaders  do.  For 
instance,  the  Fall  River  men.  The  trade  leaders  there  are  a 
mighty  good  set  of  men,  and  they  know  about  this  thing  from 
the  theoretical  side  of  it,  and  I  will  say  that  there  have  been 
indications  in  Massachusetts  of  certain  bodies  of  employers  who 
very  recently  have  taken  a  very  much  more  advanced  stand 
towards  the  Compensation  Act  than  ever  before.  And  the  way 
to  bring  this  about  is  to  let  them  have  as  much  time  as  possible 
for  discussion,  so  that  they  may  become  acquainted  with  this 
before  it  goes  into  the  Legislature.  Of  course,  they  will  discuss 
it  afterwards,  so  that,  as  I  say,  the  main  thing  is  to  get  it  out  just 
as  soon  as  we  possibly  can.  I  think  your  scheme  is  a  very  good 
one. 

Mr.  Wigmore:  So  do  I. 

Mr.  Boyd:  I  thoroughly  approve  of  the  views  of  Mr.  Lowell. 
We  had  four  hearings  in  Cleveland,  of  four  hours'  duration  each, 
where  about  forty  papers  were  read  from  prominent  lawyers. 


233 

manufacturers,  and  leaders  of  the  workingmen.  Two  or  three 
days  after  that  I  received  letters  from  prominent  manufacturers 
who  had  changed  their  views  entirely  and  come  over  to  the  gen- 
eral plan  that  we  were  talking  of  here;  and  even  the  National 
Manufacturers'  Association,  which  showed  little  indication  in 
the  Cincinnati  meeting,  after  that  Conference  sent  their  views 
to  the  chairman  of  the  Conference  at  Cincinnati,  and  asked  to 
be  permitted  to  come  to  the  Columbus  meeting  later  on  and 
restate  their  position,  which  showed  from  the  outset  a  change 
in  their  mind,  they  having  come  into  an  attitude  which  would 
be  co-operative  and  uniform  throughout  the  State.  I  think  the 
plan  of  the  chairman  is  perfectly  satisfactory. 

Mr.  Howard:  As  a  detail,  I  want  to  know  if  it  would  not  be 
wise  to  have  an  arrangement  made  for  a  duplicate  tjrpewritten 
set  of  the  record  here,  so  as  to  have  it  immediately  available,  so 
that  we  would  not  be  obliged  to  wait  until  it  is  printed. 

The  Chairman:  The  secretary,  Mr.  Saunders,  has  been 
keeping  a  close  record,  so  that  I  think  we  can  have  the  substance 
of  it,  so  that  we  may  have  a  workable  basis,  with  our  own  recol- 
lection of  the  record. 

Number  13.     Constitutionality? 

The  Chairman:  As  to  number  13,  I  assume  that  the  reason 
that  you  did  not  take  that  up  last  night  was  because  it  was  Fri- 
day, and  you  certainly  had  not  worked  enough  hours  to  justify 
us  in  stopping  at  twenty  minutes  to  ten.  [Laughter.]  There  is 
one  thing  I  would  like  to  know  as  to  constitutionality.  Is  this 
question  to  be  settled  by  this  vote  or  is  it  merely  advisory?  If 
it  is  only  advisory,  then  I  would  like  to  know  whether  both  law- 
yers and  laymen  are  to  vote  on  it,  or  limited  to  laymen.  Then 
I  would  like  to  know  whether  laymen  and  lawyers  are  both 
going  to  discuss  it.  Let  me  make  this  suggestion.  The  laymen 
may  have  questions  that  they  would  like  to  have  answered,  and, 
if  they  can  put  forward  any  questions  here  that  they  would  like 
to  have  discussed,  they  could  be  discussed  here  informally. 

Mr.  Schutz:  May  I  offer  the  suggestion  that  we  hear  on  the 
constitutionality  question,  first  of  all,  from  Messrs.  Mercer, 
Bailey,  and  Wigmore,  in  the  order  that  I  have  suggested,  and  that 
afterwards  others  discuss  the  subject? 

Mr.  Wigmore:  I  would  make  the  brief  suggestion  that  any 


234 

quotations  of  opinions  from  decisions  and  any  extended  argu- 
ments on  the  constitutionality  question  is  wasted  time,  wasting 
the  time  of  this  body. 
The  Chairman:  I  think  so. 

Mr.  Wigmore:  The  mere  statement  of  our  views  is  enough. 
The  most  valuable  thing  while  we  are  here,  in  these  brief  hours, 
that  can  be  done,  is  to  formulate  together  by  a  vote  what  should 
be  done  if  there  is  doubt  on  any  particular  point. 

The  Chairman:  I  think  that  is  an  excellent  suggestion.  I 
could  stand  up  here  for  two  days,  and  send  out  and  get  law  books 
and  read  them  to  you,  and  I  know  that  Professor  Wigmore  and 
other  gentlemen  might  stand  here  and  entertain  you  with  long 
arguments  from  now  till  next  Wednesday  night,  but  I  do  not 
think  it  would  do  you  any  special  good. 
Mr.  Schutz:  I  withdraw  my  motion. 

Mr.  Bailey:  There  is  one  question  we  have  not  thought  of, 
and  that  is  how  the  arguments  that  employees  may  have  the 
benefit  of  insurance  which  the  employer  is  carrying  should  be 
considered.  I  know  that  Professor  Williston  was  asked  to  work 
his  brains  upon  that,  and  he  in  his  short  opinion  has  given  his 
word  upon  that,  and,  following  his  views  in  the  draft  of  the  act 
which  I  made,  I  put  in  a  section  on  that.  It  is  not  exactly  a 
constitutional  question,  but  it  is  partly  that,  and  it  might  be  well 
to  have  the  views  on  that  subject  stated. 

Mr.  Wigmore:  I  think  we  should  do  so,  but  not  in  the  way  it 
was  to  be  done  in  the  act  introduced  in  Massachusetts  three  or 
four  years  ago;  namely,  to  say  that  the  workmen  should  have  a 
lien  when  the  employer  becomes  bankrupt  or  insolvent.     He 
knows  a  good  deal  about  the  law  of  bankruptcy,  and  he  found 
that  would  not  do.     But,  when  the  emplo3niient  was  hazardous, 
it  might  be  done  another  way;  namely,  by  giving  the  workman  a 
lien  that  would  take  effect  when  he  made  his  claim  for  compen- 
sation and  gave  notice  to  the  insured.     The  English  law  provides 
that,  when  a  workman  is  hurt,  he  has  to  give  notice,  and  he  also 
has  to  make  a  claim  for  compensation,  and  if,  coupled  with  that, 
he  sends  a  notice  to  the  insurance  company,  of  course  there  is 
some  difficulty  as  to  finding  out  who  the  insurance  company  is, 
but  he  will  get  over  that.     Professor  Williston  says  in  his  opinion 
that,  if  the  lien  takes  effect  from  the  notice  to  the  insurance  com- 
pany, coupled  with  a  claim  upon  the  employer,  he  thinks  that  is 
legal,  and  that  that  will  make  a  good  lien  that  will  be  recognized 
in  the  bankruptcy  court  or  elsewhere. 


235 

The  Chairman:  I  might  say  that  up  in  Minnesota  two  or 
three  years  ago  they  passed  a  law — I  don't  know  who  enacted 
it — giving  the  lawyer  a  lien  on  the  cause  of  action  at  the  time  he 
starts  the  action.  I  think  it  is  done  with  a  view  of  giving  the 
ambulance-chasers  a  lien  on  negligence  claims.  At  least,  it  has 
acted  that  way  more  than  any  other  to  prevent  settlements  of 
this  sort.  Courts  permit  such  settlements  to  be  opened  up  and 
investigated  for  the  lawyers,  because  they  wish  it. 

Mr.  Bailey:  That  rests  on  different  grounds.  The  lawyer 
has  a  workman's  lien.  He  contributes  to  the  judgment  or  result 
obtained. 

The  Chairman:  That  is,  in  this  particular  case? 

Mr.  Bailey:  I  don't  think  we  need  any  more  than  state  that, 
and  whoever  desires  to  can  examine  Professor  Williston's  opinion, 
and  may  like  to  see  the  language  I  use  in  framing  it.  There  is 
one  point  we  considered,  whether  these  liens  should  take  effect — 
the  first  one  having  priority  over  the  others — or  whether  it  should 
be  arranged  that  they  would  all  share  and  come  in  each  class  pro 
rata,  receive  them  all  the  same  and  then  split  the  claims.  As  I 
framed  it,  I  gave  them  priority  as  being  more  analogous  to  the 
proposed  basis,  and  the  question  of  priority  would  not  matter 
very  much.  Where  there  are  a  number  of  insured  injured,  the 
insurance  would  not  be  enough  to  go  around.  That  would  be 
considered,  whether  you  would  make  them  share  pro  rata,  like 
mechanics'  liens,  or  not. 

Mr.  Dickson:  May  I  suggest  that  my  feeling  is  that  you 
should  attack  the  fundamental  question  before  us  here?  Is  it 
possible  to  get  a  single  liability  law? 

The  Chairman:  Do  you  make  that  as  a  motion? 

Mr.  Dickson:  Yes. 

Mr.  Howard:  I  second  the  motion. 

The  Chairman:  The  question  is  whether  it  is  possible  to 
make  up  a  single  liability  law  and  enforce  it,  meaning  the  repeal 
of  other  remedies.     Are  you  ready  for  that  question? 

The  question  was  then  put  and  carried. 

The  Chairman  :  What  are  your  views  on  that  question? 

Mr.  Wigmore:  I  would  rather  not  give  my  opinion  at  present 
on  the  theory  that  the  junior  member,  being  the  one  of  least 
experience  and  whose  opinions  are  of  the  least  value,  should  not 
speak  first. 

The  Chairman:  The  junior  member  often  precludes  argument 
on  a  good  many  points. 


236 

Mr.  Wigmore:  As  I  understand  Mr.  Dickson's  question  on 
the  topic  of  constitutionality,  it  is  that  of  substituting  exclu- 
sively compensation  liability  for  the  common  law  liability. 
Mr.  Dickson:  Yes. 

Mr.  Wigmore:  I  see  two  sides  to  it.  There  is  the  employer's 
side,  making  him  accept  this  for  the  other,  and  then  there  is  the 
employee's  side,  making  the  employee  accept  this  for  the  other. 
There  are  two  different  constitutional  questions.  The  one  is 
the  taking  of  a  man's  right,  and  the  other  is  substituting  a  man's 
liability.  From  the  standpoint  of  substituting  the  employer's 
liability,  a  new  kind,  at  present  I  don't  see  any  real  ground  for 
doubt  that  the  Supreme  Court  of  the  United  States — and  you 
would  have  to  go  there,  I  suppose — would  come  out  to  sustain 
the  law;  and  I  don't  go  entirely  on  the  grounds  in  this  Zernecke 
case  cited  by  Mr.  Williston.  The  railroad  fire  cases,  as  treated  in 
Mr.  Justice  Gray's  opinion  in  the  167th,  page  1,  make  it  pretty 
plain  that  the  court  as  then  constituted  would  put  an  absolute 
liability  on  anybody,  analogous  to  absolute  liability  of  the  com- 
mon law,  unqualified  by  any  fault  or  negligence  of  any  sort. 
And  they  would  not  question  whether  it  was  per  se  hazardous  or 
not.  They  would  put  it  on  the  ground  that  a  man  has  created  a 
harmful  agency.  From  the  employer's  point  of  view,  I  think  the 
court  has  changed  its  complexion  somewhat. 

From  the  point  of  view  of  the  employee's  right  being  taken  away 
and  another  given,  I  don't  know  of  any  definite  authorities,  ex- 
cept from  the  point  of  view  of  the  impropriety  of  classifying  the 
risk,  and  that  is  not  the  present  question.  Suppose  everything 
has  been  done,  and  you  give  the  employee  a  new  right,  query  if 
you  can  make  him  take  a  new  right.  You  can  only  do  that  on 
condition  that  he  has  got  some  way  of  election  at  the  outset  or 
at  the  injury.     I  doubt  if  anything  else  would  go. 

A  Member:  I  want  to  ask  two  questions,  if  you  have  taken 
into  careful  consideration  whether  liability  can  be  imposed  where 
there  is  no  negligence  and  the  fact  that  railroad  fire  cases  are 
placed  on  special  ground. 

Mr.  Wigmore:  I  looked  over  the  railroad  fire  case  yesterday 
morning,  and  it  looks  to  me  the  strongest  case  we  have  for  a  long 
while.  The  other  case  stands  on  a  different  footing,  the  nitro- 
glycerine case. 

A  Member:  Justice  Holmes  is  on  the  Supreme  Court  bench, 
and  a  great  many  years  ago  he  wrote  a  book,  and  in  that  book 


237 

he  covered  the  question  of  liability  where  there  was  no  basis  for 
it  in  neghgence.  It  was  discussed.  Have  you  considered  that 
carefully? 

Mr.  WiGMORE :  Yes :  there  are  dozens  of  instances  of  that  same 
common  law  of  liability  without  fault. 

Mr.  Lowell:  Dean  Wigmore  has  written  the  best  article  on 
the  subject,  whether  under  the  old  common  law  there  was  abso- 
lute liability  without  fault. 

Mr.  Schutz  :  Where  was  that  published? 

Mr.  Wigmore:  The  title  of  the  book  is  ''Select  Essays  in 
Anglo-American  Legal  History,  Volume  3." 

Mr.  Schutz  :  And  what  is  the  title  of  the  article? 

Mr.  Wigmore:    ''The  History  of  Tortious  Responsibility." 

The  Chairman:  The  specific  point  is,  Can  we  have  but  one 
liability?  Can  we  repeal  the  common  law  and  the  statutory  law, 
and  substitute  a  system  of  single  liability? 

Mr.  Browne:  I  understand.  I  came  to  the  Conference,  gen- 
tlemen, with  an  absolutely  open  mind  on  other  questions,  save 
this,  and,  if  I  can  aid  you  at  all  in  anything  that  I  can  suggest, 
it  would  be  along  the  line  of  this  question. 

The  three  elements  in  the  statute  itself  which  appear  to  me  to 
be  essential  are :  first,  simpHcity  of  expression,  so  that  the  work- 
man— he  who  runs — ^may  read,  and  may  understand  for  himself, 
what  are  his  rights  and  responsibilities  under  the  statute;  second, 
its  certainty  in  respect  to  compensation,  that  it  shall  be  set  out 
as  clearly  as  it  is  possible  to  give  human  thought  and  expression 
in  written  language  for  his  benefit ;  and,  third,  celerity  of  remedy. 
To  my  mind  the  most  essential  thing  is  to  demonstrate  to  the 
workman  at  the  beginning  that  his  interests  lie  in  this  new  leg- 
islation from  substantially  every  point  of  view.  That  being  done, 
my  idea  is  that  the  common  law  remedy  will  seldom  be  invoked. 

The  courts  always  sustain  the  statute,  if  there  be  a  way  to 
uphold  its  validity.  The  courts,  if  possible,  uphold  a  statute 
bad  in  part  and  good  in  part,  if  they  can  separate  the  good  from 
the  bad.  And  that  leads  me  to  make  the  suggestion  that  in 
respect  to  this  legislation,  whatever  may  be  put  into  it,  which 
the  courts  can  construe  along  the  line  of  validity,  ought  to  be  so 
clearly  expressed  and  dissociated  from  the  rest  of  the  statute  that 
what  is  bad,  if  it  must  fall,  will  not  drag  the  rest  down  with  it. 
Finally,  I  don't  believe  in  making  experiments  with  statutes. 
I  am  the  more  convinced  of  that  since  reading  the  arguments  of 


238 

the  New  York  Commission's  report,  because  there  must  be  uni- 
formity in  order  to  have  any  hope  of  a  successful  outcome  to 
this  legislation.  We  are  confronted  now  in  all  the  States,  prac- 
tically, with  some  different  verbiage  in  their  constitutional  provi- 
sions. We  can  pass  the  best  statutes,  and  we  can  take  this  test, 
— and  this  is  the  ultimate  to  which  I  shall  come, — we  can  take 
the  test  of  the  Federal  Constitution,  because,  if  the  statute  does 
not  stand  the  test  of  the  Federal  Constitution,  it  is  bad.  What 
are  the  constitutional  limitations?  The  first  constitutional  law, 
and  I  hope  Mr.  Wigmore  will  not  think  that  I  am  going  to  give 
any  long  lecture  on  a  very  dry  subject  as  to  the  procedure  and 
practice  and  jurisdiction  of  the  Federal  Court — 

The  Chairman:  Mr.  Browne,  I  don't  want  to  interrupt  your 
line  of  thought,  except  to  say  this,  I  think  we  shall  discuss  the  due 
process  of  law  under  a  separate  subdivision.  This  question  is 
as  to  whether  or  not  we  shall  have  a  single  liability,  whether  we 
can  have  a  single  liability. 

Mr.  Wigmore:  That  comes  under  classification. 

Mr.  Browne:  I  don't  know  how  I  can  differentiate,  because 
I  reached  the  ultimate  conclusion  that  you  cannot  safely  do  it 
now. 

The  Chairman  :  It  would  not  be  due  process  of  law. 

Mr.  Browne:  It  might  fail  to  be  due  process  of  law,  and  it 
might  also  fail  on  other  ground.  It  occurs  to  me  to  suggest  that 
there  was  very  much  wisdom  in  the  plan  of  the  New  York  men,  and 
the  laws  which  were  enacted  by  the  New  York  Commission, — 
not  possibly  in  the  passage  of  that  statute,  the  two  statutes,  but 
it  was  perfectly  obvious  that  the  New  York  statutes  were 
passed  in  dual  form  simply  to  avoid  the  results  of  both  hazardous 
and  non-hazardous  classes  being  possibly  turned  down  together. 
In  the  New  York  statute  there  is  a  hazardous  clause,  there  is  a 
recital  eo  nomine  as  to  which  business  is  declared  hazardous. 
That  is  the  compulsory  part,  and  that,  of  course,  is  founded  on 
the  police  powers  of  the  State. 

Mr.  Wigmore:  Will  Mr.  Browne  give  us  the  benefit  of  his 
experience  at  Washington  in  respect  to  a  case  like  the  Matthews 
case  and  the  Zernecke  case  being  put  on  the  same  footing  down 
there  on  account  of  absolute  liability? 

Mr.  Browne:  Without  offence  to  the  Conference,  I  cannot 
prognosticate.  I  will  say  that,  if  we  keep  away  from  the  need  of 
the  question  being  raised  as  to  the  validity  of  the  statute,  then 


239 

nothing   injurious  can   happen.     If,  for   instance,  you   proceed 
under  the  authority  of  the  poHce  power  for  hazardous  callings, 
and  classify  them,  and  name  them  one  by  one,  if  a  party  defend- 
ant in  a  court,  State  or  Federal,  should  say  that  a  particular 
subject  was  not  within  the  poUce  power  because  it  was  not  a 
hazardous  employment,  then  the  statute — but  only  to  that  ex- 
tent— fails.     I    can    see    the  wisdom    in  making  a  compulsory 
statute    in   respect   to    these    hazardous    employments.     Either 
make  a  separate  statute  or  make  a  provision  in  regard  to  hazard- 
ous employment  so  distinct  from  the  other  that  there  will  not  be 
need  to  drag  down  all  the  statute,  because  some  court  in  some 
State  or  the  Supreme  Court  of  the  United  States  may  hold  that 
some  particular  calling  or  trade  is  not  lawfully  within  the  com- 
pulsory provision.    I  am  most  anxious  to  see  a  statute  which 
will  certainly  pass  the  test  of  the  Federal  Constitution,  and  will 
not  be  destroyed  piecemeal,  because,  when  that  comes,  you  will 
have  your  weary  road  to  travel  over  again.     You  will  have  to 
re-enact  the  statute  in  respect  to  all  of  the  States  if  one  State 
should  hold  it  to  be  unconstitutional  on  any  of  these  vital  matters 
and  the  other  States  disagree.     Then  you  will  have  a  partial 
operation  of  the  statute.     Now  it  is  the  argument  of  the  New 
York  report,  and  it  appeals  to  me  as  being  perfectly  a  patent 
proposition,  that  there  may  be  opposition  to  the  statute  on  the 
theory  that  it  lays  the  burden  of  cost  on  the  manufacturer  in  the 
State  of  New  York,  if  the  other  States  don't  adopt  the  statute. 
Now  there  is  another  and,  I  think,  a  more  serious  thing,  whether 
or  not  you  can  take  away  a  man's  right  of  contract,  either  the 
employer  or  the  employee.     The   Supreme  Court  has  said  in  a 
case  made  celebrated  by  comment  upon  it  in  the  last  few  months, 
the  baker  case  in  New  York, — it  was  a  great  case,  and  it  yet  re- 
mains a  great  case, — that  there  was  nothing  in  the  business  of 
a  baker  hazardous  within  the  limitations  of  the  police  powers; 
and  held  that  a  baker  can  contract  work  for  a  number  of  hours 
exceeding  the  limitation  of  the  statute.     Now  I  am  a  great  be- 
liever in  firmness  of  contract.    We  all  must  be,  or  we  would 
not  exist  twenty-four  hours.    There  would  be  a  chaotic  condition 
if  the  whole  commercial  world  were  not  bound  by  its  contracts. 
Now,  if  you  put  in  the  elective  method,  as  expressed  in  the  New 
York  statute   in  respect  to   those  employments  which  are  not 
within  the  police  power,  and  whether  or  not  the  State  may  also 
legislate  on  what  we  may  call  the  arbitrary  basis, — if  you  leave 


240 

in  those  remedies,  there  is  no  question  of  its  constitutionality 
at  all.  Because  if  you  leave  the  liberty  of  contract,  there  being 
no  question  of  fraud  in  a  particular  case,  then  you  have  left  the 
individual,  both  the  employer  and  the  employee,  to  exercise  the 
contractual  power.  I  am  very  hopeful  that  the  result  of  this 
Conference  will  be  to  present  a  statute  for  uniform  adoption 
which  shall  come  in  such  a  way  that  any  provisions  which  may 
be  of  doubtful  import — I  speak  of  their  validity — shall  be  so 
separated  from  the  rest  of  the  statute  that,  if  they  fall,  they 
will  not  drag  the  rest  of  it  down;  and,  second,  that  you  take 
into  serious  consideration  the  wisdom  of  the  New  York  Com- 
mission in  submitting  to  the  Legislature  the  adoption  of  the 
dual  statute.  I  don't  care  what  title  you  give  them.  The 
thing  is  not  always  known  by  the  tag  on  it.  It  may  not  be  an 
amendment  of  the  Employers'  Liability  Act  or  it  may  be.  Put 
in  one  statute  the  compulsory  provision  in  respect  to  the  haz- 
ardous employment,  but  do  not  go  too  far  and  bait  the  courts 
in  respect  to  what  are  hazardous  employments.  And  then  put 
into  the  other  the  alternative  process  of  procedure,  leaving  to 
the  parties  their  common  law  remedy.  By  doing  that,  I  believe 
both  statutes  will  be  good,  and  in  regard  to  the  provisions  in 
respect  to  compensation  we  shall  find  that  the  New  York  law, 
the  provisions  of  the  statute  in  respect  to  compensation  (perhaps 
giving  the  slightest  change  of  verbiage,  which  would  not  change 
the  legal  effect),  would  be  the  same.  I  beheve  that,  if  we  pre- 
sent that  to  Congress  in  that  form,  we  should  obviate  and  avoid 
constitutional  objection.  Congress  once  in  a  while  does  pass 
unconstitutional  statutes.  It  passed  the  first  Employers'  Lia- 
bility Act, — not  in  ignorance,  either,  because  better  lawyers  than 
I  am  stood  by  the  lawyers'  table  and  urged  their  objections  with 
respect  to  validity, — and  it  took  several  years  to  get  from  one 
body  a  new  act  to  cure  the  evils.  Amplify  that  process  in  forty- 
six  different  States,  and  you  have  the  result.  Brethren,  I  never 
went  into  anything  in  my  life,  corporation  lawyer  though  I  am, 
with  a  clearer  judgment  and  stronger  desire  than  in  this  matter 
in  regard  to  this  common  law  consideration,  so  as  to  get  some- 
thing so  substantial  to  the  workman  that  he  will  take  it,  and 
then  the  common  law  remedy  will  not  be  invoked.  But,  if  you 
leave  it  to  some  man  to  come  along  afterwards  and  say  that  this 
act  is  unconstitutional,  to  have  him  raise  the  point  and  to  have 
the  court  decide  that  it  is  unconstitutional,  then  it  will  be  un- 


241 

constitutional  for  everybody,  and  we  shall  have  our  weary  road 
to  go  over  again. 

I  thank  you  very  heartily  for  listening  to  me  thus  patiently. 

The  Chairman:  We  should  Hke  to  hear  from  Judge  Hollo  way. 
We  are  discussing  the  question  as  to  the  advisability  of  making 
a  single  inclusive  liability,  meaning  the  repeal  of  the  conmion 
law.     We  shall  be  glad  to  hear  from  you. 

Judge  Hollo  way:  Mr.  Chairman,  I  have  given  this  subject 
practically  no  thought.  To  my  mind  there  is  a  serious  question, 
and,  as  I  say,  that  arises  without  any  consideration  having  been 
given  to  the  subject  on  my  part.  The  first  question  I  asked  was, 
What  employment  shall  the  act  cover?  And  I  was  told  it  was 
intended  to  cover  all.  Now,  if  there  is  any  virtue  in  this  statute, 
at  all,  that  will  give  it  life,  it  is  by  virtue  of  the  poHce  powers. 
And  do  the  police  powers  of  the  State  go  so  far  as  to  include  a 
servant-girl  whose  employment  does  not  involve  any  risk  or 
hazard?  That  is  to  my  mind  preposterous.  If  it  is  possible 
to  include  every  line  of  employment,  why,  the  poHce  power  sub- 
ject is  a  much  broader  one  than  I  ever  anticipated.  In  its  pres- 
ent form,  then,  I  say  that  I  think  it  is  impossible  to  do  away 
with  the  common  law  and  the  statutory  rights  of  action,  and  to 
make  this  an  exclusive  remedy.  I  have  some  doubt  in  my  own 
mind  whether,  if  this  Conference  had  followed  the  procedure 
of  the  New  York  people,  and  undertaken  to  classify  the  risks 
that  are  exceptionally  hazardous,  and  included  them  only,  and 
had  drawn  up  this  plan  repealing  the  common  law  and  the 
statutory  rights  of  action,  that  would  be  constitutional  in 
Montana.  I  am  not  certain  about  that.  It  has  occurred  to 
me  that  it  might  conflict  with  the  provisions  of  our  constitution, 
which  are  very  broad,  the  right  of  trial  by  jury,  and  the  other 
provisions,  which  I  do  not  recall  just  at  this  moment.  But, 
as  I  say,  I  have  given  this  no  consideration  whatever.  The 
arguments  made  by  Mr.  Browne  appeal  to  me  very  strongly, 
but  I  am  not  in  a  position  to  offer  any  suggestions  beyond  the 
one  that  he  emphasized  and  the  one  that  I  have  just  referred  to. 

Mr.  Schutz:  Mr.  Chairman,  I  want  to  say  a  word.  My 
feeling,  so  far  as  my  opinion  on  the  subject  of  constitutionality 
is  concerned,  is  that  the  elective  feature  is  the  only  one  that  could 
possibly  save  it  from  unconstitutionality  in  Connecticut;  and  I 
do  not  quite  agree  with  the  last  speaker,  that  we  made  a  mistake 
in  suggesting  all  forms  of  employment.     I  believe  it  should  cover 


242 

all  forms,  but  should  be  purely  elective,  leaving  the  present 
remedies  with  election.  If  we  should  find  out  that  we  are  doing 
a  certain  amount  of  good,  but  still  are  planning  something  that 
is  plainly  unconstitutional  or  seems  to  be  unconstitutional,  in 
the  great  majority  of  States,  then  we  are  losing  valuable  time. 

Mr.  Boyd:  Mr.  Chairman,  I  think  that  Mr.  Browne  has 
touched  the  point  in  the  way  that  appeals  to  me,  and  to  my  point 
of  view,  from  what  little  I  know  about  it.  I  do  not  think  I  could 
add  anything  to  what  he  has  said. 

Mr.  Sanborn:  We  have  given  this  a  great  deal  of  considera- 
tion, and  we  have  had  some  of  the  best  lawyers  in  our  State  to 
work  on  the  problem,  and  we  are  arriving  at  the  conclusion  that 
the  only  way  to  reach  it  is  by  the  elective  plan.  That  is  the 
result  of  our  investigation. 

Mr.  Wigmore:  Do  you  mean  elective  for  the  employer  and 
for  the  employee? 

Mr.  Sanborn:  Both  of  them.  We  reached  the  conclusion 
that  the  great  stumbling-block  was  in.  the  employee;  that  we 
might  make  this  compulsory  to  the  employer,  but,  as  for  the 
employee,  we  found  no  way  whatever  to  get  over  the  obstacles 
in  the  way,  and  that  is  our  experience. 

Mr.  Bailey:  Mr.  Chairman,  Mr.  Wigmore,  I  think,  has 
narrowed  the  question  down  to  two  points,  but  I  am  disposed  to 
narrow  it  down  still  further,  because  we  are  now  discussing,  to 
my  mind,  the  question  of  the  policy  of  the  common  law  liabil- 
ity and  the  employers'  liability,  and  I  take  that  as  covering  all 
special  statutes.  Dean  Wigmore  says  that,  as  a  part  of  that 
question,  we  may  consider  the  question  of  the  liability  of  the 
employer  for  fault,  or,  as  I  say,  regardless  of  fault.  I  am  dis- 
posed to  leave  that  question  out  for  the  present,  and  say  that  it 
comes  down  to  this  point:  Can  you  take  away  from  the  work- 
man his  common  law  rights?  I  assume  that  we  are  going  to  have 
a  proper  saving  clause,  by  which  the  rights  of  the  workmen  under 
existing  contracts,  and  their  rights  as  to  existing  causes  of  action, 
will  be  saved.  That  goes  without  saying.  Now  assume  that, 
and  I  come  here  to  this  point:  I  think  much  has  been  suggested 
by  Judge  Sanborn,  that  the  only  safe  way  was  not  to  do  that,  and 
to  get  around  it  by  giving  the  workman  an  election.  But  I  am 
free  to  say  that  I  am  weakening  on  that.  I  find  in  this  opinion 
in  New  York  by  Judge  Fowler  that,  without  arguing  it,  he  says 
that  it  is  clear  that  you  can  take  away  common  law  rights.     I 


243 

suppose  beyond  a  doubt  we  may  take  away  the  rights  given  by 
the  Employers'  Liability  Act  that  the  Legislature  gave.  The 
Legislature  can  take  away  what  the  Legislature  gave,  and  I 
suppose  we  may  start  with  that  as  reasonably  certain.  We  may 
attain  what  we  desire,  so  far  as  those  acts  are  concerned.  We 
may  repeal  the  Employers'  Liability  Act  and  kindred  acts. 

Now  in  the  matter  of  repealing  the  common  law  rights  and 
taking  those  away  and  substituting  for  them  what  we  do  sub- 
stitute, I  have  in  mind  that  the  police  powder  does  do  that.  The 
police  power  takes  away  a  man's  property  without  any  right  of 
compensation.  To  illustrate,  take  the  case  of  a  building  that 
needs  to  be  torn  down  to  stop  a  fire.  That  is  an  extreme  case. 
There  are  a  great  many  of  those  cases.  The  courts  have  gone 
very  far.  They  have  gone  very  far  in  Massachusetts  in  the  case 
of  diseased  animals, — in  going  into  the  herd  and  taking  them 
out  and  killing  them  without  any  right  of  compensation. 

Now  here  we  give  the  workman  a  new  remedy  in  place  of  the 
old  one.  As  I  understand  it,  the  courts  say  that  in  the  first  in- 
stance the  Legislature  deals  with  the  question  of  public  policy, 
and  the  police  power  is  a  question  of  public  pohcy.  If  the  Legisla- 
ture gets  so  far  that  it  is  outrageous  and  unreasonable,  as  they 
call  it,  then,  and  then  only,  the  courts  interfere.  So  that  really 
the  Legislature  declares  public  policy,  and  so  long  as  they  are  not 
unreasonable  in  what  they  say.  So  it  makes  me  think  that  you 
may  possibly,  and,  I  think,  I  might  say  probably,  take  away  the 
common  law  remedy;  that  is,  the  common  law  right  of  action 
of  the  workman.  I  say  that  with  a  good  deal  of  fear  and  trem- 
bling, but,  as  Professor  Williston  says,  my  mind  is  hospitable  to 
that  idea.  I  hope  the  analogies  which  I  have  suggested  are  good 
ones,  and  that  the  police  powers  in  the  Legislatures  are  broad 
enough  to  do  that.  I  am  inchned  to  think  they  are,  and  I  do 
not  believe  that  the  courts,  if  they  allow  the  Legislature  to  impose 
a  liability  upon  the  employer,  regardless  of  fault, — I  like  that  ex- 
pression better  than  "without  fault,"  regardless  of  fault,  without 
going  into  the  question  of  fault, — I  think  the  court  is  likely  to 
go  the  other  step,  and  say  that  you  may  do  the  other  thing  and 
take  away  the  common  law  liabiHty.  Because  in  the  183d 
United  States,  the  case  cited,  as  Professor  Williston's  brief  sug- 
gested, the  court  might  allow  the  Legislature  to  impose  an  abso- 
lute liability  on  the  employer.  And  the  reasoning  on  those  cases, 
in  the  opinion  of  Mr.  Justice  Moody,  which  is  quoted  or  referred 


244 

to  by  Mr.  Williston,  is  merely  the  dictum  in  which  the  court  took 
occasion  to  recognize  the  matter, — to  recognize  what  is  now  in  the 
air.  If  this  thing  had  come  up  ten  years  ago,  I  suppose  that  almost 
everybody  here  would  have  considered  it  hopeless  to  have  thought 
that  the  Legislature  would  or  could  pass  an  act  which  would 
impose  a  Hability  on  an  employer  regardless  of  fault.  But  dur- 
ing the  last  ten  years  we  have  had  many  States  repealing  the  fel- 
low-servant doctrine,  and  the  assumption  of  risk  doctrine  and 
contributory  negligence  doctrine,  under  the  police  power,  I  take 
it,  and  the  courts  allowing  that.  And  we  have  this  new  doc- 
trine in  the  air,  that  it  is  for  the  welfare  of  society  that  we  have 
the  compensation  law.  Mr.  Justice  Moody  refers  to  that  in  that 
case.  That  being  in  the  air,  and  it  being  a  question  of  public 
policy,  and  there  being  a  public  opinion  which  we  now  know  is 
increasing,  and  which  already  exists,  it  must  be  considered.  It 
was  shown  down  at  Washington  last  winter,  at  a  meeting  held 
under  the  auspices  of  the  Civic  Federation,  where  some  of  us 
began  to  learn  about  Workmen's  Compensation  Act.  The  senti- 
ment there  was  all  one  way,  and  that  sentiment  is  increasing 
throughout  the  country.  I  have  here  an  address  delivered  last 
summer  in  West  Virginia,  where  members  of  the  bar  discussed 
the  question.  The  question  every  day  is  being  more  widely  dis- 
cussed than  ever  before,  and  I  think  the  courts  will  hesitate  to 
say  that  what  the  Legislature  does  on  the  ground  of  public  policy 
is  unconstitutional.  So  that  I  am  disposed  to  go  further  than 
Mr.  Browne  suggested.  Mr.  Browne  says,  separate  the  questions. 
But  in  the  State  House  in  Boston  many  of  the  speakers  suggested 
that  we  must  not  be  too  timid  in  this  matter.  If  the  thing  is 
right,  it  ought  to  come,  and  we  ought  to  have  faith  in  the  courts 
that  they  will  not  prevent  it. 

Mr.  Browne  :  I  do  insist  that  in  my  belief  it  is  the  safest  thing 
to  write  a  statute  in  manuscript,  that  you  can  find  no  suggestions 
on  which  to  found  an  argument.  In  other  words,  put  your  stat- 
ute in  such  a  form  that,  when  it  is  passed,  it  will  stand.  Then 
it  will  progress. 

Mr.  Wigmore:   Take  the  illustration  of  land  titles. 

Mr.  Browne:  That  is  elective. 

The  Chairman:  The  courts  uphold  them. 

Mr.  Browne:  That  is  not  compulsory.  Outside  of  the  exer- 
cise of  the  police  powers  of  the  State,  it  does  not  extend  to  domes- 
tic servants  or  to  a  large  variety  of  employment. 


245 

Mr.  Schutz:  May  I  ask  a  question?  He  says  that  he  is 
slowly  coming  to  the  position  that  you  can  absolutely  disregard 
liability.  I  want  to  ask  him  whether  he  has  considered  whether 
or  not  it  would  not  greatly  help  if  you  left  in  the  employer's  per- 
sonal negligence  only.  As  a  practical  matter,  it  would  not  amount 
to  much,  because  very  little  advantage  would  be  taken  of  it. 
But,  as  a  constitutional  matter,  it  is  worth  consideration,  and 
I  would  like  to  ask  him  whether  he  has  considered  that  point. 

Mr.  Bailey:  Just  a  little.  I  have  thought  about  narrowing 
down  the  common  law  rights  of  the  workman  at  common  law. 
My  idea  was  that  we  better  do  it  by  election,  as  has  been  suggested 
in  Wisconsin.  That  is  the  way  I  framed  the  act.  My  mind  is 
upon  that  proposition,  that  you  can  combine  the  two  of  them,  the 
election  and  the  diminution  of  the  common  law  rights,  so  that  they 
will  be  even  less  attractive  than  ever.  In  Massachusetts  the 
fellow-servant  doctrine  cuts  into  the  common  law  rights  a  great 
deal;  and  the  assumption  of  risk,  which  I  had  some  part  in  ex- 
tending. There  was  a  very  interesting  case,  where  a  workman 
of  the  then  West  End  Street  Railway  was  working  on  a  hay- 
cutter,  and  got  hurt.  I  reviewed  the  law  at  that  time,  and  the 
courts  are  extending  it  so  that  the  law  applies  to  a  case  of  that 
sort.  So  that  in  Massachusetts  it  would  be  no  great  innovation 
for  the  Legislature  to  curtail  the  common  law  rights.  But  I  have 
not  thought  of  that  enough  to  have  any  clear  ideas. 

Mr.  Lowell:  Mr.  Chairman,  I  am  one  of  the  youngest 
lawyers  here,  so  I  speak  with  the  very  greatest  confidence.  It 
seems  to  me  that  there  is  a  way  of  having  only  one  liability,  but 
I  am  frank  to  say  that  it  is  a  way  I  don't  believe  in.  It  is  the 
Wisconsin  way.  That  is,  you  can  give  an  election  to  both  sides 
to  take  the  old  or  the  new  scheme.  Now  I  don't  believe  in  that, 
because  the  result  would  be  that  many  employers  would  be  in  it, 
perhaps,  for  one  year,  and  then  get  out  of  it.  Many  employees 
will  be  out  of  it  in  one  factory,  and  many  in;  and  they  will  get 
out  of  it  and  get  into  it.  So  that  you  will  have  the  result  of  peo- 
ple being  in  and  out,  and  really  you  have  no  entire  system.  Now 
it  seems  to  me  vital  for  our  law  that  it  shall  be  an  entire  system. 
And  the  way  which  I  think  you  can  do  this  is  this:  The  thing 
which  is  bothering  me  a  great  deal  and  which  is  the  question  which 
bothers  New  York,  and  the  question  which  bothers  my  brother 
Browne,  is  this  question  of  the  hazardous  risk.  Now,  as  I  under- 
stand the  decisions  of  the  United  States  Supreme  Court,  what  they 


246 

are  considering  there  is  not,  Can  you  cover  all  industries?  but,  Can 
you  make  a  classification  of  industry?  But  the  question  has  not 
come  up  to  them,  as  I  understand  it,  whether  you  can  cover  all 
employments,  because,  if  you  cover  all  employments,  then  you  are 
not  legislating  against  one  rather  than  the  other.  So  that  the 
question  of  classification  does  not  arise.     There  is  no  classification. 

Now  I  am  firmly  of  the  opinion,  as  I  said  before,  being  the 
youngest  man  here,  that  you  can  pass  a  law  covering  everything 
that  you  want  covered,  because  you  make  no  classification;  you 
cover  every  employment  that  there  is.  And  the  way  you  have 
got  to  do  it  is,  I  think,  the  way  suggested  by  Dean  Wigmore,  and  I 
shall  merely  restate  it,  with  a  little  more  attention  to  details.  I 
think  you  have  got  to  give  to  the  workman  the  right  to  a  jury 
trial  at  the  common  law.  I  do  not  think  you  have  got  to  give 
him  the  right  to  jury  trial  under  your  new  act,  because  you  can 
give  him  the  choice  of  a  suit  at  common  law,  where  he  gets  a 
jury  trial,  or  a  proceeding  under  the  act,  where  he  does  not.  Now 
I  think  that  is  constitutional,  because  you  have  not  deprived  him 
of  his  rights  to  a  trial  by  jury.  Then  you  come  to  the  other  side 
of  it,  to  the  employer's  side  of  it.  As  I  said  before,  I  don't  think 
that  will  be  held  bad  by  the  Supreme  Court  of  the  United  States, 
because  it  is  not  classification.  Everybody  is  in.  There  is  no 
classification  about  it.  You  cover  everybody.  Now  have  you 
got  to  give  him  a  jury  trial?  I  am  frank  to  say,  until  I  talked  to 
Mr.  Bailey,  since  reaching  Chicago,  that  I  thought  you  must. 
But  I  am  not  at  all  sure  now  but  that  perhaps  you  need  not. 
My  idea  is  that,  even  if  you  have  got  to,  as  a  practical  matter,  it 
does  not  amount  to  anything,  because  the  employer  will  never 
ask  for  it.  So  it  seems  to  me  that,  even  though  you  must  put  into 
your  law  a  trial  by  jury  for  the  employer,  we  are  not  thereby  put- 
ting in  any  sort  of  weakness,  because,  as  a  practical  matter,  it 
will  not  be  availed  of. 

Mr.  Dickson:  Is  it  not  practically  a  law  that  would  make 
it  binding  on  one  party  without  binding  the  other?  My  point 
is  this:  You  say  that  you  are  sure  that  you  cannot  take  the  com- 
mon law  rights  away  from  the  employee,  but  you  can  from  the 
employer.  If  you  can,  would  you  not  have  the  position  that 
the  employee  has  a  right, — has  one  end  of  the  contract,  and  his 
employer  has  not  got  the  other  end?  In  other  words,  one  is 
bound,  and  the  other  is  loose. 

Mr.  Browne:  What  would  you  say  to  the  proposition  that 


247 

you  are  enacting  laws  which  are  partial?  You  have  got,  on  the 
other  hand,  the  class  of  employers  and,  on  the  other  hand,  the 
class  of  employees.  Are  you  not  denying  equal  protective  laws 
to  both  parties? 

Mr.  Lowell:  That  is  my  idea,  just  what  Mr.  Dickson  and  Mr. 
Browne  have  said.  My  idea  of  what  you  ought  to  do,  I  think, 
Mr.  Bailey  has  suggested  in  the  scheme  which  he  has  worked 
out,  and  which  is  rather  technical,  so  I  won't  go  into  it  at  length, 
because  I  think,  if  you  have  got  to  put  in  your  jury  trial  on  be- 
half of  the  employer,  you  are  not  interfering  with  the  operation 
of  the  act,  because  they  won't  ask  for  it.  If  you  have  got  to, 
all  right.  Now  it  has  been  suggested  by  Mr.  Bailey  that  you 
haven't  got  to, — for  this  reason,  and  this  is  rather  technical,  and 
I  only  stay  on  it  for  just  a  minute.  The  system  which  we  pro- 
pose contains  weekly  payments  over  a  long  period  of  time;  it 
contains  provision  for  varying  amount  and  time  in  these  weekly 
payments,  when  the  employee  gets  better  or  worse.  If  he  gets 
better,  the  payments  are  smaller,  and,  if  he  gets  worse,  they  are 
larger.  Now  at  common  law  you  haven't  got  machinery  for 
doing  that.  If  you  sue  at  common  law,  you  get  a  judgment 
which  says  that  A  shall  pay  to  B  two  thousand  dollars  with  in- 
terest, and  that  is  all  there  is  about  it.  You  haven't  got  the 
machinery  for  saying  that  ten  weeks  from  now  A  shall  pay  to  B 
fifteen  hundred  dollars.  This  is  Mr.  Bailey's  idea.  In  order  to 
work  out  the  new  system,  you  must  go  into  the  equity  side  of  the 
court,  because  you  cannot  ask  it  on  the  other  side  of  the  court. 
Now  Mr.  Bailey  says  that  is  constitutional.  It  is  true  that, 
perhaps,  you  are  depriving  a  man  of  his  right  to  trial  by  jury; 
but  is  it  depriving  him  of  property  without  due  process  of  law? 
That  is,  as  I  understand  it,  the  argimient.  And  perhaps  it  is  not, 
because  it  is  in  the  power  of  the  Legislature  to  suggest  a  remedial 
law  of  this  kind,  and  a  method  of  its  enforcement  in  some  detail. 
It  cannot  be  enforced  at  common  law.  You  may  enforce  it  on 
the  other  side  of  the  court,  which  does  not  have  jury  trial.  I 
suggest  that  as  something  upon  which  I  have  not  personally  come 
to  any  conclusion,  whether  it  is  possible  or  not.  But  I  say  that 
you  can  get  around  it  without  giving  to  the  employees  the  right 
of  trial  by  jury  under  the  new  act.  Only  at  common  law  you 
have  to  give  to  the  employer  the  right  of  trial  by  jury.  But  that 
will  not  interfere  with  the  operation  of  the  act,  because  he  will 
not  want  it. 


248 

Mr.  Dickson:  May  I  ask  another  question:  Wherein  do  you 
differ  from  Mr.  Browne?  You  are  in  favor  of  the  elective  method. 
Isn't  that  a  fact? 

Mr.  Lowell:  No,  not  the  Wisconsin  act.  My  proposition  is 
to  put  through  a  law  whereby  everybody  is  under  the  law  only 
as  to  the  details  of  it.  The  employee  has  a  right  to  claim  trial 
by  jury, — not  under  the  whole  thing,  but  under  what  remains  of 
the  old  law.  And  that  will  save  a  tremendous  number  of  law- 
suits, because,  if  this  thing  works  out,  there  will  be  probably  a 
hundred  lawsuits, — a  hundred  recoveries  under  the  new  act  to 
five  under  the  old.  So  you  get  a  very  much  better  situation. 
But  you  don't  have  to  give  him  a  jury  trial  under  the  new  act; 
and,  if  you  give  the  employer  a  jury  trial  under  the  new  act,  you 
don't  hinder  anything  in  his  case,  because  he  doesn't  want  it 
and  will  not  ask  for  it. 

Now  the  difference  between  Mr.  Browne  and  myself,  I  think, 
is  largely  one  which  arises  from  our  needs  in  Massachusetts. 
Mr.  Browne  suggested,  if  I  got  it  correctly,  that  you  ought  to 
phrase  your  law  so  that,  if  it  was  not  good  for  all  employments, 
it  w^ould  be  good  for  hazardous  employment.  If  that  were  the 
result  of  the  law  in  Massachusetts,  it  would  be  of  no  benefit  to 
us.  So,  as  I  say,  we  must  have  a  law  which  covers  everybody, 
and  it  is  of  no  use  to  have  a  law  which  the  court  will  say,  "This 
is  no  good  for  factories,  but  is  good  for  building,"  because  then 
we  have  taken  out  of  the  operation  of  the  law  the  very  people  we 
want  to  get  in  under  it. 

Mr.  Browne:  I  think  you  misunderstood  me  somewhat. 
Let  me  say,  in  order  to  make  myself  clear,  that,  when  I  spoke 
about  due  process  of  law,  I  meant,  of  course,  the  guarantee  of  the 
constitution  to  a  common  law  trial  by  jury,  in  all  demands  over 
twenty  dollars.  But  in  framing  the  statute  we  should  go  as  far 
as  it  is  wise  under  the  police  powers,  making  this  compulsory, 
and  making  it  plain  under  the  common  law,  but  not  beyond 
that,  to  interfere  with  what  the  Supreme  Court  has  declared 
is  the  freedom  of  contract  both  to  employer  and  to  employee. 
That  is  the  rock  on  which  this  will  founder,  in  my  judgment,  if 
that  is  not  done. 

Mr.  Lowell:  Perhaps  we  differ,  as  I  think  you  and  Dean 
Wigmore  differ,  inasmuch  as  you  have  a  law  which  will  impose 
liability  for  everything  on  the  employer,  carrying  out  the  sug- 
gestion already  made  of  a  statute  like  the  fire  statute. 


249 

Mr.  Browne:  We  can  try  it,  and  find  out  when  we  are  older. 

Mr.  Lowell:  That  is  all  we  can  do  in  any  of  these  things. 

Judge  Hollo  way:  If  I  understand  Mr.  Lowell,  his  proposi- 
tion, to  my  mind,  is  very  manifestly  unfair,  so  that  it  would  be 
useless  to  talk  of  enacting  it  in  the  Western  States.  As  I  under- 
stand him,  if  it  is  necessary  to  provide  in  this  bill  for  trial  by 
jury  on  the  election  of  the  employer  as  well  as  the  employee, 
then  this  situation  presents  itself:  The  employee  is  killed  out- 
right. His  personal  representatives  are  anxious  to  come  under 
this  statute,  and  get  three  thousand  dollars  in  a  lump  sum.  The 
employer  says,  "No,  I  won't:  I  insist  on  my  right  to  a  trial  by 
jury."  He  drags  the  employee  through  long  processes  of  a 
trial,  to  recover  what?  Three  thousand  dollars, — the  maxi- 
mum. To  my  mind  that  is  preposterous.  If  the  employer  wants 
a  jury  trial,  and  insists  that  he  get  it,  I  insist  that  he  take  it  with 
all  the  burdens  that  is  imposed  on  him  to-day;  and  I  think 
every  laboring  man  in  the  United  States,  without  a  dissenting 
voice,  would  say  the  same  thing  if  the  employee  is  to  be  dragged 
through  the  courts.  The  employee  goes  into  court.  The  utmost 
he  can  recover  is  three  thousand  dollars,  and  he  has  got  to  pay  a 
lawyer  and  the  court  expenses  out  of  that.  He  will  recover  his 
court  expenses,  we  will  admit  that,  but  he  must  pay  his  lawyer. 
He  is  unable  to  employ  the  best  lawyer.  He  has  not  the  money. 
The  best  he  can  do  is  to  arrange  with  a  lawyer  on  the  contingent 
fee  basis.  He  gives  his  lawyer  fifty  per  cent.,  and  at  the  end  of 
the  lawsuit,  after  waiting  three  or  four  years  for  the  tedious 
process  of  the  court,  for  his  case  to  get  to  the  court  of  last 
resort,  the  family  of  the  dead  man  gets  the  magnificent  sum  of 
fifteen  hundred  dollars!  Why,  it  would  be  useless  to  talk  of 
enacting  such  a  statute  as  that  in  the  Western  States  to-day. 

Mr.  Rohr:  Mr.  Chairman,  upon  the  topic  before  the  house 
I  know  but  little,  but  I  may  say,  as  one  representing  labor,  we 
unanimously  hope  and  pray  that  those  who  have  to  do  with  the 
legal  propositions  will  never  forget  that  human  life  should  come 
before  all  other  things;  and,  further,  that  whatever  bill  may  be 
drawn  up,  will  be  forced  to  run  the  gauntlet  of  those  attorneys 
who  have  in  the  past  evinced  an  interest  in  the  rights  of  labor. 

Mr.  Bent:  Mr.  Chairman,  I  represent  the  Illinois  Coal 
Operators'  Association,  as  well  as  the  Illinois  Employers'  Lia- 
bility Commission.  The  result  of  our  investigation  into  the 
situation  in  Illinois,  I  think,  convinces  all  of  the  employers  on 


250 

the  Commission  and  the  majority  of  the  representatives  of  or- 
ganized labor  on  the  Commission  that,  if  it  were  constitutionally 
possible  to  have  a  compulsory  act  eliminating  altogether  all 
alternatives,  it  would  be  for  the  best  interests  of  all;  if  it  is  not 
possible  to  do  that  directly,  that  we  should  seek  to  make  it  un- 
attractive to  both  sides  to  do  anything  else,  under  an  elective 
act.  The  bill  which  we  drafted,  but  did  not  submit  to  the  Legis- 
lature, owing  to  the  opposition  on  the  part  of  the  Chicago  Fed- 
eration of  Labor,  sought  to  accomplish  that.  While  elective  in 
form,  we  felt  that  the  employers  would  all  come  under  the  act, 
certainly  in  the  hazardous  employments,  and  we  felt  that  very 
soon  the  employees  would  do  so.  I  think  that  the  majority  of 
the  Commission  felt  disposed  to  take  a  chance  on  a  simple  com- 
pulsory act,  hoping  that  on  the  broad  basis  of  public  policy 
the  Supreme  Court  would  uphold  it.  It  is  entirely  possible  that 
the  Commission  will  reconstruct  the  act  as  a  voluntary  body, 
and  will  take  up  that  question  in  the  near  future.  I  think  it  is 
likely  that  the  Commission  will  proceed  with  the  work,  and 
recommend  something  to  the  Legislature  this  winter.  I  believe 
I  represent  others  when  I  say  that  we  feel  very  strongly  that  the 
act  should  be  compulsory  in  form  to  the  exclusion  of  everything 
else.  And,  if  that  is  not  possible,  it  should  be  framed  so  that 
it  is  the  only  thing  resorted  to.  I  believe  I  have  had  in  mind 
the  altruistic  side  of  this  thing,  and  that  the  views  I  hold  fit  in 
with  the  interests  of  labor,  although  I  represented  the  employers. 
AH  through  the  State,  in  our  public  hearings,  organized  labor 
said  to  us,  "Give  us  a  certain  amount,  and  give  it  to  us  with- 
out delay;  give  it  to  us  without  friction,  without  the  claim  agent, 
without  the  ambulance-chaser,  and  without  uncertainty.''  But, 
when  we  came  to  the  Chicago  Federation  of  Labor,  they  asked 
to  perpetuate  these  evils,  and  simply  to  destroy  the  employers' 
defences.  I  am  in  sympathy  with  the  gentleman  who  is  opposed 
to  the  plan  which  gives  the  employee  the  election,  but  I  do  not 
think  it  is  either  wise  or  fair  to  have  an  act  that  gives  to  the  em- 
ployees an  election  after  the  accident.  It  will  entail  the  expense 
of  double  insurance  by  the  employer.  If  it  is  true  that  eighty  or 
ninety  per  cent,  of  all  the  cases  would  come  under  the  Compen- 
sation Act,  yet  the  residue  would  be  those  where  there  would  be 
clear  liability,  and  the  large  majority  of  the  employers  would 
have  to  insure  against  greatly  increased  costs  under  the  Compen- 
sation Act,  and  also  against  an  occasional  large  verdict.     I  do 


251 

not  think  that  is  fair.  I  do  not  think  it  is  in  the  public  interest. 
I  do  not  think  that  labor  needs  it.  If  we  make  the  scale  of  com- 
pensation reasonable  on  the  start,  in  the  future  compensation 
can  be  increased.  I  think  the  employee  and  the  employer  should 
both  have  that  much  protection  against  uncertainty. 

Mr.  Browne:  I  want  to  ask  Mr.  Bent,  if  there  was  but  one 
liability,  a  single  liability  under  a  compensatory  act,  what  would 
be  done  with  the  operator  in  the  mine  who  failed  to  make  pro- 
vision for  the  safety  of  the  mine,  and  avoid  just  such  accidents 
as  happened  down  here  in  Illinois  three  years  ago  or  more? 

Mr.  Bent:  Mr.  Chairman,  in  my  judgment  the  cost  of  general 
compensation  will  be  so  very  great  in  the  coal  mining  industry 
of  the  West  that  self-interest  will  bring  about,  steadily  and 
speedily,  protection  against  loss  of  life  in  every  possible  way. 
I  act  in  several  relations.  I  am  president  of  a  coal  mining  com- 
pany in  Illinois,  I  am  secretary  of  our  association,  and  I  am 
secretary  of  our  Mutual  Employers'  Liability  Company,  which 
has  been  doing  business  extensively  in  Indiana  and  Illinois  for 
five  years,  so  that  I  speak  with  some  information.  And  we 
find  from  careful  investigation  that  the  cost  of  compensation 
such  as  is  proposed  would  be  about  two  hundred  and  fifty  per 
eent.  of  the  present  cost,  and  we  find  that  the  benefit  to  the  em- 
ployees would  be  from  eight  hundred  to  twelve  hundred  per 
cent,  on  account  of  the  great  saving  in  waste.  So  that  I  am 
satisfied  there  would  be  no  danger  of  such  carelessness  as  oc- 
curred in  some  cases  in  the  past,  under  this  act.  And  I  agree 
with  you  that  the  thing  to  be  sought,  the  preventing  of  all  this 
loss  of  life,  that  there  would  be  a  good  deal  done  in  that  way. 
And  general  compensation  will  be  as  complete  a  corrective  as 
the  liability  under  the  common  law: 

Mr.  Lowell:  Mr.  Bent,  what,  in  a  general  way,  was  the  form 
of  your  proposed  law? 

Mr.  Bent:  Our  proposed  act  provided  that  the  scale  of  com- 
pensation was  about  the  same — 

Mr.  Lowell:  I  mean  the  constitutional  part  of  it.  Did  you 
say  that  the  employers  and  the  employees  might  elect  to  take  it? 

Mr.  Bent:  To  make  the  law  compulsory  in  form,  but  elective 
in  fact;  that  regardless  of  negligence  the  employer  shall  pay  com- 
pensation according  to  the  scale  set  forth  in  the  act;  and  re- 
serving to  both  the  employer  and  the  employee  their  common 
law  remedies,  including  trial  by  jury;    providing,  however,  as 


252 

to  the  employer,  if  he  refuses  to  pay  the  compensation  according 
to  the  scale  provided  in  the  act  and  the  employee  has  an  action  of 
common  law,  he  shall  not  escape  liability  by  reason  of  either 
the  fellow-servant  rule  or  the  assumption  of  risk  rule. 

Mr.  Lowell:  That  is  all  I  wanted  to  know. 

Mr.  Wigmore:  Under  this  system  the  employee  makes  the 
claim  first. 

Mr.  Bent:  The  employer  shall  elect  within  a  certain  number 
of  days,  and  the  employee,  when  he  obtains  employment,  elects 
whether  to  be  under  the  Compensation  Act  or  not.  And  the 
employer  by  the  same  way  then  passes  into  the  final  state. 

I  will  add,  Mr.  Chairman,  that  we  very  much  prefer  a  single 
bill  dealing  with  the  present  defences  and  general  compensation, 
for  two  reasons:  The  Legislature  may  pass  one  act  and  not  pass 
the  other,  and  disturb  the  agreement  reached.  Or  the  Supreme 
Court  may  uphold  one  act,  and  not  the  other.  So  that  we  run, 
then,  into  the  single  act. 

Mr.  Neill:  Mr.  Chairman,  may  I  suggest  one  consideration 
here  that  I  do  not  think  has  been  touched  upon  yet?  There 
seems  to  me  to  be  very  grave  doubt  in  the  minds  of  the  gentle- 
men learned  in  the  law  as  to  whether  this  would  be  constitu- 
tional or  not.  Now  one  proposition,  and,  in  fact,  the  funda- 
mental reason  for  this  group  being  here,  is  an  attempt  to  secure 
uniform  legislation.  Now  suppose  you  pass  a  law,  and  in  one 
State  it  is  declared  constitutional,  and  another  State  entirely 
wipes  it  out.  Haven't  you  brought  about  the  very  thing  you 
are  now  trying  to  avoid?  Won't  you  have  extremely  inequi- 
table conditions  between  competing  interests  in  different  States? 
There  should  be  a  law  that  will  be  constitutional  and  that  will 
work  in  every  State  alike. 

Just  one  more  point.  We  are  considering  this  question  from 
the  employers'  standpoint  and  from  the  standpoint  of  the  em- 
ployee. Now  suppose  a  majority  of  men  are  one  or  the  other. 
Now  you  have  got  to  consider  the  common  sense  and  the  justice 
of  the  public  which  looks  on.  It  is  a  fair-minded  public,  irre- 
spective of  its  relations  to  employer  and  employee.  If  you 
take  away  certain  rights  from  the  employee,  I  do  not  think  the 
public  will  stand  it,  without  making  it  an  even  break  and  tak- 
ing something  away  from  the  employer.  This  movement  is  hav- 
ing a  good  deal  of  progress  at  this  time,  and  we  must  not  turn  the 
public  against  it  by  attempting  to  take  away  the  rights  of  the 


253 

employer  and  not  take  corresponding  rights  away  from  the  em- 
ployee. 

Now  there  are  certainly  some  features  which  ought  to  be  con- 
sidered. We  see  that  there  are  about  twenty  per  cent,  of  the 
accident  cases  under  the  present  law  in  which  a  damage  suit  will 
lie;  that  is,  from  negligence  on  account  of  the  employer  or  on 
the  part  of  some  one  who  represents  him.  On  the  other  hand, 
as  Mr.  Alexander  pointed  out,  there  are  thirty  per  cent,  of  the 
•cases  in  which  there  is  plainly  negligence  on  the  part  of  the  em- 
ployee. I  was  told  yesterday,  by  a  gentleman  who  had  gone  over 
twenty  thousand  cases,  that  in  those  twenty  thousand  cases 
he  found  that  twenty  per  cent,  of  them  were  due  to  negli- 
gence on  the  part  of  the  employee,  and  in  those  cases  the  man 
injured  would  have  no  standing  whatever  to  recover  under  the  com- 
mon law,  which  holds  a  man  liable  for  his  own  negligence.  Now, 
if  you  are  going  to  make  the  employer  responsible  not  only  for  the 
sixty  per  cent,  of  cases  in  which  nobody  is  responsible,  but  make 
him  liable  for  those  twenty  per  cent,  of  cases  in  which  the  em- 
ployee is  plainly  liable,  wouldn't  it  be  fair  on  that  ground  that,  if 
you  take  away  one  right,  you  should  take  away  an  equal  right  from 
the  other  side?  If  you  have  got  to  leave  a  right  with  the  ten, 
fifteen,  or  twenty  per  cent,  of  cases  where  a  man  is  liable  to  a 
claim  under  the  present  law,  a  law  which  may  secure  to  him  heavy 
damages,  you  must  balance  that  with  the  fact,  taking  the  wage- 
earners  as  a  body,  that  you  have  given  to  the  workmen  a  right 
where  they  had  no  right.  If  you  want  to  penalize  an  employer 
for  negligence,  is  it  necessary  to  make  that  a  sort  of  profit  to  the 
man  who  is  injured,  and  his  family?  Cannot  that  be  made  by 
statute,  requiring  him  to  do  whatever  is  right  and  necessary 
in  the  interests  of  protection?  It  seems  to  me,  as  long  as  you 
penalize  him  by  leaving  him  subject  to  a  trial  by  jury, — that  is, 
he  does  not  know  what  the  penalty  is  going  to  be, — you  are 
putting  a  premium  on  litigation,  and  you  are  putting  a  premium 
on  employees  bringing  suit  to  try  to  get  something  and  possibly 
get  nothing.  And  the  way  to  meet  that  objection  would  be  to 
let  the  State  require  what  seems  to  be  right  and  necessary  in 
that  way. 

Mr.  Lowell:  Mr.  Chairman,  we  all  insist  on  hearing  from  the 
chairman. 

The  Chairman:  Gentlemen,  the  time  is  up,  and  I  don't  want 
to  discuss  this  at  length.  I  promised  to  send  you  some  docu- 
ments. 


254 

Until  Mr.  Lowell,  our  friend  from  Massachusetts,  suggested 
that  he  was  the  youngest  man  of  this  body,  and  was  therefore 
entitled  to  be  the  most  rash,  I  had  hoped  to  have  claimed  that 
privilege  for  myself,  because  I  shall  have  to  be  a  little  broader  in 
my  contentions  than  anybody  else  that  has  spoken;  and  I  have 
no  doubt  whatever  that  there  is  no  lawyer  in  this  room  who,  if 
he  will  give  as  much  study  to  this  question  as  I  have  given  it, 
and  understands  it  better,  will  come  to  the  conclusion  that  there 
is  no  difficulty  in  passing  a  law  with  a  single  liability,  in  repealing 
the  common  law,  in  repealing  the  liability  statute,  and  making 
it  constitutional  both  as  the  Federal  and  State  constitutions. 

In  other  words,  we  are  operating  under  a  general  system  of 
Federal  government  and  State  government.  The  Federal  gov- 
ernment in  the  Constitution  has  one  clause  that  applies  to  this, 
as  far  as  State  action  is  concerned,  or,  rather,  one  amendment. 
The  first  ten  amendments  apply  to  the  Federal  government  and 
not  to  the  States.  The  Federal  government  is  a  government  of 
delegated  powers  only.  You  must  find  something  in  the  Con- 
stitution of  the  Federal  government  which  by  express  provision 
or  fair  implication  would  limit  you  on  this  question  before  it 
could  interfere.  Now  the  fourteenth  amendment  does  mean  to 
limit  the  State.  It  does  mean  to  limit  the  State  so  that  they  will 
pass  a  law  that  will  give  equal  protection,  that  will  give  due  process 
of  law,  and,  as  construed  by  the  Supreme  Court,  will  protect 
liberty  of  contract.  The  commerce  clause  of  the  Federal  Con- 
stitution does  not  accord  to  Congress  police  powers.  As  to  inter- 
state commerce,  it  accords  powers  somewhat  kindred,  but  the 
courts  have  held,  and  they  have  gone  to  the  Federal  Supreme 
Court,  that  it  does  not  grant  police  powers  to  those  States.  With- 
in the  Territories  the  power  is  delegated  under  an  entirely  dif- 
ferent clause,  and  in  the  District  of  Columbia  and  the  forts  and 
arsenals  it  is  under  a  different  clause.  There  they  have  police 
powers.  The  Federal  Constitution  does  not  pretend  to  give  a 
right  to  the  State  to  enforce  such  laws,  but  just  simply  to  see 
that  the  States  do  their  duty.  The  Federal  Government,  as  such, 
has  no  common  law.  That  has  been  the  general  theory  of  the 
Supreme  Court.  They  have  weakened  a  little  on  that  in  the  last 
two  or  three  years  in  one  or  two  cases,  to  the  effect  that  in  in- 
terstate common  matters  there  are  matters  which  may  be  kindred 
to  the  State  law.  The  Federal  government  has  no  right  to  legis- 
late on  this  question  as  to  employments  strictly  within  the  State, 


255 

if  it  has  a  right  under  the  commerce  clause  to  legislate  with  re- 
spect to  interstate  matters.  Now  what  is  the  law?  Except  in 
one  or  two  of  the  States  which  took  their  laws  from  the  South, 
under  Napoleon,  such  as  Louisiana,  we  may  say  that  our  com- 
mon law  comes  to  us  by  adoption  from  the  laws  of  England  at  the 
time  of  the  Declaration  of  Independence,  including  the  customs  that 
run  so  long  that  the  mind  of  man  runneth  not  to  the  contrary. 
The  statutes  then  in  force  in  England,  where  the  same  were  not 
contrary  to  our  Constitution,  were  adopted  finally.  That  body 
of  common  law,  then,  is  State  law,  and  not  Federal  law,  and  to 
say  that  that  cannot  be  repealed  must  be  to  say  that  the  State 
cannot  repeal  its  own  law.  The  Supreme  Court  has  held  in  two 
decisions  it  can  modify  it  and  repeal  the  common  law,  and  every 
State  in  the  Union  has  modified  and  has  repealed  parts  of  it. 
That  occurs  every  time  it  has  enacted  any  change  in  the  common 
law.  And  so  it  only  becomes  a  question  as  to  whether  it  can  repeal 
the  whole  thing,  as  a  system.  The  States  have  gone  so  far  and 
the  courts  have  gone  so  far  in  sustaining  it  that  I  cannot  believe 
there  is  any  question  about  it  unless  it  be  on  the  mere  principle 
that  some  of  the  constitutions  have  no  remedy  for  wrong,  and  the 
courts  hold  that  to  be  not  a  particular  remedy,  but  an  adequate 
and  sufficient  remedy.  And,  if  we  believe  the  law  should  give 
adequate  and  sufficient  remedy  under  the  circumstances,  I  have 
no  doubt  the  State  courts  mil  uphold  it;  and  it  won't  be  any 
business  of  the  Federal  court  if  you  comply  with  the  fourteenth 
amendment,  which  can  easily  be  done,  I  think. 

Now  as  to  the  statutory  law  of  the  different  States.  They 
have  repealed  them  and  added  to  them,  have  taken  away;  they 
have  nullified  any  portion  of  them  they  wanted  to  on  any  sub- 
ject. And  the  law  ought  to  be  broad  enough  with  respect  to  both 
common  law  and  the  statutes,  as  it  seems  to  me,  to  make  a  code 
on  the  question,  what  is  known  in  jurisprudence  as  a  system  of 
law  covering  the  subject.  That  is  wholly  essential  in  our  State 
and  in  a  great  many  other  States,  because  the  constitutional  pro- 
vision prohibits  you  covering  more  than  one  subject,  and  there 
would  be  danger  in  this  unless  you  did  it.  Now  there  are  a 
good  many  decisions  in  various  States  passing  on  such  a  code, 
such  as  in  the  probate  matters.  If  the  common  law  was  adopted 
in  one  of  the  sovereign  States  by  express  enactment,  why  couldn't 
it  repeal  it  by  the  same  process?  So  that,  so  far  as  repealing 
the  common  law,  that  is  a  matter  of  State  action  and  State  con- 


256 

stitution,  as  it  seems  to  me.  But  the  Federal  fourteenth  amend- 
ment might  possibly  operate  if  a  fellow  didn't  have  any  remedy 
whatever  under  the  theory  of  the  republican  form  of  government. 
And  the  protection  lies  in  the  fifth  amendment,  that  provides 
for  due  process  of  law,  which  applies  only  to  Federal  law,  and 
not  to  the  State. 

Now,  so  far  as  the  States  themselves  are  concerned,  the  limi- 
tation in  the  Federal  Constitution,  as  I  view  it,  amounts  to  this : 
First,  due  process  of  law,  which  it  is  the  duty  of  the  State  to 
provide,  giving  notice  of  the  tribunal  and  fair  opportunity  to  be 
heard.  Not  necessarily  a  jury  trial,  not  necessarily  an  equitable 
cause,  not  necessarily  any  particular  form  of  remedy,  but  notice 
of  opportunity  to  be  heard, — a  tribunal  with  jurisdiction  to  make 
valid  decisions.  If  you  have  that  under  the  system  you  create, 
I  see  no  objection  from  that  standpoint. 

From  the  standpoint  of  equal  protection  to  the  laws,  I  do  not 
believe  you  can  repeal  this  proposition  as  to  one  side  and  leave  it 
as  to  the  other.  I  do  not  think  it  should  be  done  from  the  stand- 
point of  the  distribution  of  the  liability  under  equal  protection 
principle.  Both  the  Federal  courts  and  the  State  courts  uphold 
the  proposition  that,  if  reasonable  classifications  are  made,  if 
you  make  a  classification  which  is  based  on  reasonable  grounds 
or  distinctions,  the  courts  will  sustain  that  under  the  equal  pro- 
tection clause.  The  decision  of  Judge  Sanborn,  a  very  eminent 
authority,  as  I  view  him,  has  been  cited  here.  We  know  he  has 
gone  further  in  the  178th,  as  I  view  it.  I  do  not  mean  Judge 
Sanborn  in  this  room,  but  Judge  Sanborn  in  the  Eighth  Circuit. 
But  I  think  Judge  Sanborn,  with  the  218th  before  him,  would 
clarify  his  views  on  that  question.  So  that  the  practical  necessi- 
ties for  mathematical  accuracies  of  classification  would  really 
be  found  in  all  our  States,  and  not  in  the  Federal  government. 

Now  as  to  liberty  of  contract.  It  is  the  rule  in  our  State,  rec- 
ognized in  the  rule  of  the  Supreme  Court  of  the  United  States, 
not  only  in  the  Lackmer  case,  cited  by  Mr.  Browne,  but  in  other 
cases,  that  the  liberty  secured  by  the  fourteenth  amendment  is 
a  property  right,  that  it  covers  the  question  of  the  right  of  con- 
tract between  employer  and  employee.  While  in  Europe  this 
summer,  I  had  a  letter  from  a  man,  a  very  able  Federal  judge, 
criticising  that  doctrine  upon  the  theory  of  some  articles  in  one 
or  two  law  magazines,  to  the  effect  that  the  historical  relations 
of  that  constitutional  amendment  were  never  intended  to  give 


257 

it  that  construction.  But  it  has  gotten  into  the  Supreme  Court 
of  the  United  States,  and  it  has  been  decided  in  that  way.  As 
it  has  gotten  through  the  United  States  Supreme  Court,  and  that 
court  has  decided  it  that  way,  for  safety  we  must  treat  that  sub- 
ject as  settled  law,  as  I  view  it.  That  is,  in  the  Lackmer  case. 
And  the  other  cases  in  the  Federal  Supreme  Court  have  held  very 
clearly  that  the  Federal  constitutional,  and  no  other  constitutional, 
provision  was  intended  to  require  absolute  liberty  of  contract 
in  cases  involving  the  police  power.  And  there,  it  seems  to  me, 
rests  the  solution  of  this  question.  If  your  law  is  so  drawn  that 
the  Legislature  will,  on  a  reasonable  basis,  be  entitled  to  say  that 
there  is  necessity  for  interference  in  this  proposition,  the 
court,  if  it  sticks  by  its  rule  of  following  the  Legislature  on  those 
questions  where  it  is  not  arbitrary,  but  on  a  reasonable  basis, 
will  have  to  sustain  the  law.  Now  that  cannot  be  easily  done, 
but  it  can  be  done  for  practical  purposes.  I  am  not  sure  as  to  the 
form  it  should  take,  but  this  is  sure,  that  about  twenty-three 
foreign  countries  have  passed  laws  bearing  on  this  subject  after 
having  found  that  there  were  other  systems  more  or  less  similar, 
and  ours  requires  a  change.  Seven  or  eight  States  have  com- 
missions appointed,  investigating  this  matter.  We  have  met  at 
Atlantic  City,  and  discussed  it  at  length.  We  have  met  again 
at  Washington  in  January,  where  nineteen  States  were  represented 
by  delegates  appointed  by  the  Governors.  It  was  considered  at 
the  National  Civic  Federation.  We  met  again  in  Chicago,  and 
here  discussed  it  for  two  days  on  the  10th  and  11th  of  June  of 
this  year,  and  it  has  been  discussed  again  by  the  National  Civic 
Federation  once  or  twice;  once  in  Washington  in  January,  1899, 
by  the  American  Association  on  Labor  Legislation.  And  in  all 
these  proceedings  I  have  been  present  and  taken  substantially 
this  position.  So  I  could  not  go  back  on  it  unless  for  some  very 
forcible  reason.  But  however  that  may  be,  and  while  the  data 
are  not  accurate  now,  it  probably  will  be  conceded  that  the  injuries 
to  workmen  in  the  course  of  their  employment  in  the  United 
States  every  year  reach  an  extent  which  in  dollars  and  in  the 
loss  of  life  and  limb  and  in  the  wreckage  on  society  is  in  the  ag- 
gregate as  great  as  the  total  loss  in  the  Civil  War  in  the  sixties 
in  five  years.  Under  those  circumstances  there  certainly  is 
reason  to  think  that  the  present  systems  are  inadequate.  We  all 
concede  that.  The  very  fact  that  they  are  inadequate  is  an 
argument  for  the  production  of  this  new  system.     And,  from  the 


258 

vety  fact  that  they  are  inadequate,  they  should  be  repealed, 
and  there  should  be  something  else  to  take  their  place.  A  strong 
argument  for  the  court  to  sustain  a  proposition  for  repeal  is  that, 
being  insufficient,  they  should  be  repealed,  and  we  can  then  adopt 
something  that  is  sufficient  in  their  stead,  and  in  such  a  way 
that  the  employees  could  be  within  the  law  or  in  the  code.  Not, 
as  my  brother  Browne  suggested,  if  I  understood  him  correctly, 
on  the  basis  of  the  old  law,  which  should  be  declared  unconsti- 
tutional, but  on  the  basis  of  a  new  code  so  enacted  that,  if  the 
court  should  strike  out  one  system,  it  would  declare  the  new  law 
void  and  leave  the  other  standing.  Then  there  would  be  no 
hindrance.     There  would  be  no  law  on  the  other  side. 

Now  it  seems  to  me  the  court  should  take  all  these  things  into 
consideration  and  rest  on  the  principle  of  equitable  construction 
of  law  to  reach  the  purposes  which  the  exigencies  of  the  case 
demand,  and  should  not  shut  their  eyes  to  the  fact  that  here  is 
a  great  calamity,  and  that  the  Constitution  was  not  intended  to 
prevent  it.  Almost  every  decision  that  has  been  made  under 
the  police  powers  in  the  Federal  courts  and  in  the  State  courts 
that  have  gone  outside  of  that  principle  of  protecting  the  general 
welfare  would  be  void,  at  least  a  large  number  of  them.  Now 
the  Federal  Constitution  does  put  limitations  on  the  police  powers, 
as  I  view  it,  for  the  State.  It  puts  limitations  on  it  for  the  lib- 
erty of  contract.  There  must  be  a  dangerous  situation,  that 
the  Legislature  has  the  right  to  say  is  dangerous.  It  puts  a  limi- 
tation on  to  it  as  to  the  quality  of  laws, — the  limitation  that  the 
laws  shall  be  the  same  to  all  persons  under  the  same  circumstances, 
or  as  nearly  as  can  be  done.  It  puts  no  limitation  on  the  due 
process  of  law,  any  more  than  it  does  on  other  subjects. 

Now,  when  we  face  this  proposition  from  the  standpoint  of  the 
historical  relations  of  the  two  constitutions,  the  fact  that  the 
State  has  a  right  to  do  anything  which  it  has  not  been  prohibited 
from  doing,  if  it  is  within  the  powers  of  ordinary  State  legisla- 
tion, it  certainly  would  be  within  the  Federal  Constitution  unless 
there  is  some  specific  provision  like  the  equal  protection  clause  or 
the  liberty  of  contract  clause  which  must  be  construed  as  inter- 
fering with  it. 

So  it  seems  to  me  that,  if  we  pass  a  law — the  law  which 
we  have  been  advocating  right  along — which  has  simplicity  and 
directness  and  rapidity  and  equality,  and  all  that  is  similarly 
situated  within  a  reasonable  clause,  we  shall  have  no  difficulty 
with  the  Federal  Constitution. 


259 

Now  as  to  the  right  of  trial  by  jury.  The  Federal  Constitution 
has,  within  the  first  ten  amendments  that  apply  only  to  the  regu- 
lations of  the  Federal  court,  the  provision  of  trial  by  jury.  In 
our  own  State  our  court  has  construed  that  to  mean  a  provision 
for  securing  the  rights  existing  at  the  time  the  constitution  was 
adopted,  and  not  new  rights  created  in  the  future.  You  might 
have  the  right  of  trial  by  jury  under  the  Federal  courts,  but  my 
solution  of  that  problem  would  be  that  you  fix  an  arbitration 
clause  along  the  lines  of  the  arbitration  clause  in  fire  insurance 
policies,  which  would  require  the  submission  to  arbitration  be- 
fore the  suit  was  brought  on.  My  own  opinion  is  that  we  can 
work  on  it  in  existing  circumstances,  because  we  have  a  law  which 
requires  liability  in  accordance  with  the  precise  words  of  the 
statute,  and  prohibits  the  enactment  of  any  policy  which  is  not 
in  the  exact  words  of  the  statute,  and  has  another  provision  for 
arbitration;  and  that  is  upheld.  We  have  also  the  provision  for 
proving  claims  before  the  County  Commissioners,  and  to  appeal 
from  their  decision  to  the  court.  And  that  is  upheld  as  being 
due  process  of  law  and  perfectly  valid,  and  is  apparently  in  the 
line  of  the  decisions  in  most  States.  But,  so  far  as  the  Federal 
law  is  concerned,  the  Federal  Constitution  has  the  right  of  trial 
by  jury.  And,  as  far  as  the  laws  in  all  the  States  are  concerned, 
it  is  at  present  advice  my  opinion  that,  if  you  follow  the  provi- 
sions in  your  law  similar  to  the  provisions  which  have  been  upheld 
in  England  and  in  the  United  States  Supreme  Court  and  the 
courts  of  a  very  large  number  of  States,  a  liability  would  be  con- 
ditioned on  submission  of  the  controversy  to  arbitration,  and  you 
could  eliminate  every  constitutional  objection  in  the  way  of  trial 
b}^  jury  in  all  the  constitutions.  And  I  think  the  courts  will  hold 
that  is  a  fair  remedy  under  the  circumstances. 

Mr.  Wigmore  :  Both  parties,  you  mean? 

The  Chairman:  Both  parties.  I  would  make  the  liability 
direct  on  the  employers,  provided  the  employees  submitted  it  to 
arbitration.  I  would  repeal  every  other  law,  so  that  the  em- 
ployer would  not  have  the  chance  of  defending  under  the  con- 
stitution. I  would  put  it  up  to  the  States  or  the  Legislatures. 
I  would  oppose  any  election  which  would  give  either  one  an  ad- 
vantage over  the  other.  I  should  strenuously  oppose  any  law 
which  would  make  any  penalties  on  either  side  for  the  enforce- 
ment of  this  law.  I  think  one  of  the  main  objects  is  to  get  rid 
of  hard  feelings,  is  to  get  out  of  that  situation,  so  that  there  is 


260 

no  chance  for  controversy  and  hard  feeling  on  either  side;  and 
I  beheve  the  only  way  to  do  that  is  to  remove  the  idea  of  penalty 
from  either  standpoint  on  both  sides. 

Now,  if  there  are  violations  so  bad  that  they  ought  to  be  pro- 
hibited, put  a  penalty  on  them.  I  think  the  State  is  competent 
to  pass  laws  to  protect  and  to  punish  both  sides  in  that  regard. 
But  I  think  you  ought  to  have  a  contribution  from  both  sides 
in  this  proposition  and  make  both  sides  feel  responsible.  But 
that  has  been  ruled  the  other  way,  and  I  do  not  think  I  care 
to  talk  any  further  upon  that. 

Mr.  Dickson:  Assuming  that  all  the  legal  talent  has  been 
heard,  I  should  like  to  centralize  the  discussion  and  probably 
get  some  real  action,  and  for  that  purpose  I  offer  the  following 
motion : — 

I  move  you,  sir,  that  it  is  the  consensus  of  opinion  at  this  Con- 
ference that  the  law  should  be  compulsory  in  form,  but  elective 
in  fact,  providing  in  the  first  instance  that  the  employer  will 
pay  the  compensation  according  to  the  scale  set  forth  in  the  act, 
but  reserving  to  both  employer  and  employee  their  common  law 
remedies,  including  trial  by  jury,  providing,  however,  as  to  the 
employer,  that,  if  he  refuses  to  pay  the  compensation  according 
to  the  scale  provided  and  forces  the  employee  to  his  action  at  the 
common  law,  he  shall  not  escape  liabilit}^  by  either  the  fellow- 
servant  rule,  the  assumption  of  the  risk,  or  the  contributory 
negligence  of  the  employee,  unless  his  negligence  be  greater  than 
that  of  the  employer,  in  which  event  the  damages  shall  be  ap- 
portioned according  to  the  relative  degree  of  negligence,  and  the 
burden  of  proof  shall  be  upon  the  employer. 

There  is  further  which  might  be  desirable. 

The  Chairman  :  That  is  one  of  the  Illinois  plans. 

Mr.  Rohr:   I  second  that. 

The  Chairman:  You  all  know  that  some  States  have  tried 
that.  Illinois  had  a  committee  which  reported  such  a  law,  and 
it  failed  of  passage,  and  Massachusetts  had  it  some  years  ago. 

Mr.  Bailey:  I  want  to  move  an  amendment  to  that.  I  do 
not  think  any  of  us  here  are  ready  to  vote  on  that.  We  have 
heard  different  views  expressed,  and  my  amendment  will  be  that 
the  committee  make  a  draft  of  an  act,  considering  the  points 
embodied  in  the  motion,  carefully,  in  framing  the  act,  and  that 
is  as  far  as  we  ought  to  go. 

Mr.  Schutz:    That  is  an  entirely  new  thought  to  me.     It 


261 

did  not  occur  to  me  before.  It  appeals  to  me  from  this  stand- 
point, that  it  puts  the  obligation  on  the  employer  to  comply  with 
the  act,  otherwise  he  would  lose  his  personal  defences,  and  it 
puts  the  obligation  on  the  employee  also  to  resort  to  the  act, 
because,  if  he  does  not,  he  will  have  to  take  the  common  law  with 
the  safeguard  in  it. 

Mr.  Wright:  We  thought,  when  we  drafted  the  alternative 
bill,  the  section  of  which  has  just  been  read,  that  we  would  meet 
pretty  nearly  with  the  approval  of  the  employer  and  the  em- 
ployee. But,  as  is  usually  the  case,  we  did  not  meet  either  one. 
In  the  work  of  collecting  data,  we  found  that  we  could  nearer 
meet  the  wishes  of  both  the  employer  and  the  employee  by  draft- 
ing a  compulsory  bill.  And  recently,  at  the  State  meeting  of 
our  labor  organizations,  they  approved  the  course  of  drafting 
a  compulsory  bill.  And  that  is  the  position  we  find  ourselves 
in  to-day. 

The  Chairman:  Let  me  ask  you  this  question,  if  I  may:  From 
your  observation  and  study  of  this  question  haven't  you  come 
to  the  conclusion  that  the  matter  of  the  elective  scheme  is  simply 
about  the  second  stage  in  the  study  of  the  question,  and,  when 
you  get  down  to  the  bottom  of  it,  one  liabilitj^  is  all  there  is  to  it? 

Mr.  Wright  :  Yes,  we  found,  as  in  a  great  many  other  matters, 
that  we  were  going  ahead  a  little  too  rapidly  by  trying  to  enact 
a  compulsory  bill.  Subsequently  we  tried  another  plan  by 
going  a  little  further  and  striking  out  the  features  of  the  com- 
pulsory bill,  but  it  left  elements  of  uncertainty  in  the  bill  itself, 
and  we  found  that  a  compulsory  bill  might  not  be  constitutional. 
But  I,  for  one,  have  come  to  the  conclusion  that  the  courts  would 
just  as  readily  uphold  a  real  compulsory  bill  as  they  would  a 
makeshift  compulsory  bill,  and  if  we  adopt  a  voluntary  bill, 
voluntary  for  both  sides  to  go  into  it,  then  it  would  be  merely  a 
makeshift  and  of  little  good. 

The  Chairman:  I  suppose  you  came  to  the  conclusion  they 
would  be  more  likely  to  uphold  it.  You  are  an  attorney,  aren't 
you? 

Mr.  Wright:  No. 

The  Chairman:  I  thought  you  were,  from  the  maimer  in 
which  you  were  talking. 

The  question  now  is,  the  simple  question  as  to  whether  you 
would  approve  the  motion  of  Mr.  Dickson. 

Mr.  Wright:  No,  I  don't  agree  with  Mr.  Dickson,  simply 


262 

because,  while  the  IlHnois  Commission  has  ceased  to  exist  as  a 
State  Commission,  on  the  part  of  the  labor  members,  the  Com- 
mission will  continue  as  a  voluntary  commission,  and  we  will 
take  our  compulsorj^  bill  and  try  to  perfect  it,  and  bring  it 
before  the  Legislature  next  spring,  and  I  believe  that  the  labor 
organizations  will  get  back  of  it,  and  unanimously  ask  to  have 
it  passed.  And  we  shall  ask  the  employers  to  appoint  a  volun- 
tary commission  on  their  part,  and  we  hope  to  have  a  bill  brought 
before  the  Legislature  as  an  agreed  measure.  Whether  we  can 
agree  on  that  or  not,  however,  there  will  be  a  compulsory  bill 
offered  by  the  trade  unions  of  this  State. 

There  should  be  one  liability.  We  will  ask  two  things:  to 
have  a  scale  adopted,  formulated,  or  indorsed  by  the  Legislature 
as  to  the  different  accidents;  and  the  value  of  a  man  after  the 
different  accidents  have  taken  place. 

Mr.  Browne:  Fixing  his  economical  loss? 

Mr.  Wright:  Yes.  And  we  will  also  try  to  incorporate  in 
the  same  bill  a  repeal  of  certain  of  the  laws  as  they  exist  at  the 
present  time. 

Mr.  Bailey:  We  started  this  morning  to  discuss,  not  the 
whole  question,  but  the  question  of  repealing  the  common  law. 

The  Chairman:  I  think,  perhaps,  I  owe  an  apology,  because, 
for  one,  I  went  outside  that. 

Mr.  Bailey:  Every  one  has  gone  over  it,  but  I  tried  to  keep 
somewhere  near  it.  I  do  not  suppose  we  will  take  any  vote  on 
the  merits  of  the  debate,  although  it  is  very  important  to  have 
got  an  expression  of  opinion.  I  do  not  ask  for  any  vote  on  that. 
Now  we  come  to  the  motion  which  I  know  goes  into  another 
question  than  the  one  which  was  discussed;  namel}',  the  question 
•of  employers'  liability,  regardless  of  fault.  I  have  a  few  more 
words  to  say  on  that  point.  My  present  suggestion  is  that  we 
take  a  vote  on  Mr.  Dickson's  motion  that  we  adopt  the  Illinois 
plan,  the  plan  of  the  Illinois  Commission.  My  mind  is  still  open, 
and  I  am  inclined  to  agree  with  Mr.  Mercer. 

A  Member:  There  are  other  subjects  on  which  we  are  sub- 
stantially agreed. 

Mr.  Bailey:  Are  we  in  favor  of  the  elective  system  rather 
than  the  other?  If  we  have  the  elective  system,  I  think  the 
committee,  in  drafting  the  act,  will  consider  every  one  of  those 
points,  and  may  think  that  they  are  good  ones.  They  may  draft 
a  separate  act.     I  do  not  want  to  go  on  record  as  not  in  favor 


263 

of  that,  as  against  the  compulsory  system.  I  believe  fully  that 
it  is  very  vital  that  the  employers  should  be  affected,  willy  nilly. 
It  may  be  a  new  act  should  be  drawn,  separate  from  the  other, 
something  less  drastic,  so  that  the  court  may  possibly  leave  one 
and  adopt  the  other,  approve  one  and  deny  the  other.  We  shall 
not  be  doing  the  thing  justice  unless  we  carefully  consider  the 
possibility  of  a  compulsory  law,  and  I  am  not  ready  to  give  that 

up. 

The  Chairman:  I  understood  that  you  were  raising  again  the 
question  of  whether  or  not  there  should  be  trial  in  the  regular 
way  or  by  a  board  of  arbitrators. 

Mr.  Wright:  No. 

The  Chairman:  And  the  other  was  whether  there  should  be 
more  than  one  liability. 

Mr.  Wright:  Primarily,  the  object  is  to  settle  this  particular 
question,  whether  it  is  a  single  liability  or  elective. 

The  Chairman:  That  we  voted  on  last  night,  in  favor  of  the 
single  liability. 

Do  you  want  to  take  the  result  of  the  Conference  as  it  was  and 
bring  up  the  question  as  to  whether  or  not  there  was  anything 
discovered  since  then? 

Mr.  Wright:  I  cannot  see  that  I  have  interjected  anything 
new,  except  the  fundamental  question  of  whether  it  is  a  single 
hability  or  alternative. 

The  Chairman:  You  want  to  review  the  whole  question? 

Mr.  Wright:  After  having  heard  the  arguments  pro  and  con 
on  the  constitutional  element. 

Mr.  Lowell:  There  is  one  point  that  is  not  touched  on,  on  the 
question  of  election.  I  merely  state  it  as  a  matter  of  opinion. 
We  have  had  the  elective  system  in  Massachusetts  for  two  or 
three  years,  whereby  the  employers  and  employees  could  agree. 
In  the  first  place,  it  was  onl}^  the  employer  who  could  suggest  it, 
and  then  an  amendment  was  made  whereby  a  certain  number  of 
employees  could  suggest  it  and  get  a  system  whereby  they  could 
get  out  from  under  the  law  of  Massachusetts.  Now  it  has  been 
on  the  statute  book  three  years,  and  so  little  attention  has  been 
paid  to  it  that,  when  Mr.  Doten  went  up  to  the  board  which  had 
charge  of  it,  the  member  of  the  board  there  did  not  know  to  what 
he  was  referring,  and  said  to  him,  ''Oh,  yes,  I  believe  there  was 
a  law  passed  about  that,  but  nobody  has  come  into  the  office  to 
ask  about  it." 


264 

The  Chairman:  That  has  been  my  understanding  of  that 
situation  in  other  places  where  it  has  been  tried. 

Mr.  Wigmore:  I  would  like  to  ask  that  we  should  vote  on 
Mr.  Dickson's  proposition  in  the  sense  in  which  he  has  explained 
it,  because  it  would  affect  the  labors  of  the  drafting  committee. 
It  strikes  me  that  this  Conference  is  entitled  to  insist  that  the 
drafting  committee  follow  its  instructions,  having  heard  the  con- 
stitutional discussion.  We  make  now  the  decision  of  what  we 
want  the  drafting  committee  to  do,  because  the  whole  structure 
and  future  of  the  bill  depends  on  that.  I  think  we  should  vote 
on  the  proposition  one  way  or  another,  which  would  necessarily 
divide  us  on  the  separate  points  on  which  we  differ.  We  can  vote 
on  the  proposition  of  exclusive  liability  for  the  employer  and 
elective  or  optional  choice  of  remedies  for  the  employee.  Then,  if 
we  vote  that  down,  let  us  vote  upon  the  next  point,  election  for 
the  employer  and  election  for  the  employee;  then,  if  we  vote 
that  down,  let  us  vote  as  to  compulsion  for  both  of  them,  and 
then  the  drafting  committee  will  have  an  expression  of  the  views 
of  this  Conference  on  all  those  three  subjects. 

Mr.  Bailey:  I  want  to  say  I  expected  we  would  have  the 
votes.  We  discussed  the  question  of  single  liabiUty,  and  we 
have  discussed  the  question  of  liability  regardless  of  fault.  That 
is  involved. 

The  Chairman:  That  is  involved  here. 

Mr.  Bailey:  The  constitutionality  of  it  we  have  discussed 
more  or  less,  although  it  was  not  before  us.  I  thought  there  was 
but  one  more  word  to  be  said  about  that  aspect  of  it.  We  should 
vote  separately  on  the  question  of  repealing  the  common  law  and 
as  to  its  constitutionality.  And  then  we  should  have  a  vote  on 
the  constitutionality  of  the  employers'  liability  regardless  of 
fault.     That  is  what  we  are  here  for  to-day,  the  constitutionality. 

The  Chairman  :  That  is,  as  I  understand  this  question,  gentle- 
men. I  don't  think  the  motion  is  properly  put.  I  think  it  ought 
to  be  upon  the  question  you  are  discussing  outside  of  the  matter 
discussed  last  night,  of  single  liability.  If  you  make  a  motion 
to  open  that  proposition,  it  will  be  in  order.  You  have  dis- 
cussed it,  and  we  are  committed  to  that. 

Mr.  Wigmore:  The  first  vote  should  be  whether  we  instruct 
the  drafting  committee,  in  framing  this  bill,  to  frame  the  bill,  on 
the  basis  of  single  liability  for  the  employer  and  employee  or  the 
option  to  take  that,  or  to  keep  the  common  law  remedy. 


265 

The  Chairman:  Are  you  willing  that  should  be  the  first 
motion? 

Mr.  Dickson:  I  withdraw  my  motion. 

The  Chairman:  Shall  it  be  understood  that  the  vote  on  this 
shall  be  in  place  of  that  last  night? 

Mr.  Wigmore:  Permit  me.  In  view  of  the  constitutional 
doubts  that  may  arise,  I  move  that  we  hereby  instruct  the  draft- 
ing committee  to  frame  its  bill  so  as  to  provide  exclusive  single 
unlimited  liability  under  the  Compensation  Act  for  the  employer, 
leaving  the  employee  the  option  to  choose  that  or  his  common 
law  remedy. 

The  Chairman:  You  mean  unlimited  as  to  the  amount  or 
time? 

Mr.  Wigmore:  Unlimited  as  to  fault. 

The  motion  as  put  was  seconded,  and  by  rising  vote  was  lost. 

The  Chairman:  I  declare  that  lost. 

Mr.  Wigmore:  I  move  the  next  question,  that  the  drafting 
committee  be  instructed  to  include  the  elective  retention  of  his 
common  law  liability  by  the  employer  and  the  corresponding 
retention  by  the  employee;  in  other  words,  elective  for  both 
parties. 

Motion  was  put  and  lost  by  a  majority  of  one  vote,  eight  for 
and  nine  against. 

Mr.  Wigmore  :  Then  I  move  that  the  framing  be  on  the  basis 
of  exclusive  compensatory  right  and  liability  for  both  parties, 
with  no  election  on  the  part  of  either. 

Mr.  Browne:  Apparently,  we  have  lost  the  other  motion  by 
just  one  vote.  Now  I  want  to  make  this  suggestion,  based  on 
actual  experience  elsewhere,  in  the  Conference  of  Commissions 
on  uniform  State  laws,  that  we  threshed  it  out  and  threshed  it 
out,  and  we  did  not  come  out  with  any  view,  unless  there  is  a 
unanimous  vote  or  practically  unanimous. 

The  Chairman:   That  was  considered  in  another  matter. 

Mr.  Browne  :  Let  me  make  the  suggestion  for  what  it  is  worth, 
that  two  drafts  of  bills  be  made.  When  the  divorce  congress 
came  to  this  consideration,  two  drafts  of  bills  were  made,  giving 
the  right  of  divorce  in  a  large  number  of  cases, — I  speak  of  the  di- 
vorce absolute, — and  the  other  making  it  limited  except  in  the 
one  case  of  the  statutory  offence.  Now  you  may  find  out  that 
to  undertake  to  pass  a  uniform  law,  in  some  of  the  States  one 
form  can  be  secured  and  the  other  in  another.     These  drafts  were 


266 

merely  alternative  and  in  aid  of  the  legislation  itself.  And 
would  it  not  be  wise  to  put  it  in  such  alternative  phrasing  that 
that  particular  section  or  sections  may  be  alternative,  and  then 
it  may  pass  in  the  respective  Legislatures?  In  other  words,  if  you 
cannot  get  the  compulsorj^  view,  then  have  the  elective  system 
in  a  common  form. 

Mr.  Bailey:  Mr.  Chairman,  I  believe  that  what  I  said  before 
is  worth  while;  namely,  that  it  is  wrong  to  tie  the  hands  of  the 
drafting  committee  absolutely,  as  this  vote  will  do.  I  shall 
vote  yes  on  that,  but  I  do  think  that  it  would  be  wiser,  and  that 
it  would  be  the  sense  of  this  meeting,  to  leave  the  drafting  com- 
mittee some  chance  to  use  their  brains  and  their  discretion  upon 
it,  because  they  might  think  that  we  should  have,  as  Mr.  Browne 
has  suggested,  a  compulsory  bill,  and  also  something  which  has 
an  element  of  election  in  it,  so  that  we  should  have  less  chance 
to  differ  when  we  have  all  the  light  there  is  on  the  subject.  I 
would  rather  vote  on  the  sense  of  the  present  meeting  that  it 
should  be  compulsory,  but  I  do  not  think  the  hands  of  the  com- 
mittee should  be  tied. 

Mr.  Bent:  We  have  found  out  here  how  many  favor  a  bill 
that  is  compulsory  on  the  one  side  and  elective  on  the  other,  and 
how  many  people  favor  a  bill  that  is  alternative  on  both  sides, 
but  we  have  not  found  out  how  many  favor  the  bill  of  single  lia- 
bility. And,  even  if  it  is  not  final,  we  shall  all  know  more  when 
we  know  how  many  like  the  third  plan. 

Mr.  Sanborn:  I  wish  to  call  Mr.  Lowell's  attention  to  one 
serious  diflSculty  in  the  suggestion  he  makes.  We  might  pass 
an  elective  bill  in  Wisconsin,  a  purely  elective  bill,  and  I  do  not 
suppose  there  would  be  a  man  come  under  it.  To  my  mind, 
the  great  need  is  to  get  uniformity.  If  Massachusetts  will  pass 
a  compulsory  law,  if  Illinois  will  pass  a  compulsory  law,  and  if 
the  other  States  do  not  fall  in  line,  we  shall  not  have  uniformity. 
If  we  do  have  uniformity,  we  shall  adjust  ourselves  all  right.  If 
the  compulsory  law  is  held  constitutional  in  all  the  States,  why, 
we  will  all  come  under  the  compulsory  rule.  If  it  is  held  uncon- 
stitutional, we  will  work  out  some  basis  that  is  right.  But,  so 
long  as  we  keep  our  schedules  that  affect  the  liability  uniform, 
we  are  putting  the  burden  equally.  Now,  to  my  mind,  the  main 
thing  is  uniformity.  I  think  the  expressions  here  are  all  right 
in  Hne  that  we  should  work  this  out  on  the  compulsory  plan. 

The  Chairman:  That  is  what  we  would  have  to  do  in  our 
State. 


267 

Mr.  Lowell:  May  I  say  one  word,  being  responsible  as  a 
member  of  the  Massachusetts  Commission  for  this  gathering? 
What  I  had  hoped  to  get  out  of  this  meeting  is  just  exactly  what 
we  have  got,  and  I  am  stuck  on  myself,  we  are  all  stuck  on  our- 
selves, for  having  got  this  gathering  together. 

The  Chairman:   We  are  all  stuck  on  you.     [Laughter.] 

Mr.  Lowell:  Now  the  important  thing  is  to  have  the  details 
of  the  bill  uniform  throughout  the  States,  and  we  have  got  a  very 
great  measure  of  uniformity.  Now  that  is  the  main  thing  which 
we  have  got.  The  question  of  whether  it  is  compulsory  and  can 
be  got  through  in  Minnesota,  or  whether  it  is  elective  and  can  be 
got  through  in  Wisconsin,  or  what  is  the  form  of  it  in  Massachu- 
setts, is  a  minor  detail.  Now  we  should  not  have  this  Confer- 
ence bound  necessarily  unless  there  is  unanimity,  practical  unanim- 
ity, on  either  one  of  those  three  alternatives  or  three  choices.  So 
that  it  seems  to  me  that  the  expression  here  should  be  merely  an 
expression  of  opinion,  and  that  the  drafting  committee,  unless 
it  is  fairly  unanimous,  should  bring  in  an  alternative  as  to  the 
form  of  the  bill. 

The  Chairman:  Then  the  vote  is  on  the  question  of,  first. 
Shall  you  advise  this  committee  to  draft  a  single  liability  bill? 

The  motion  as  put  by  the  chairman  was  seconded,  and  carried 
by  twelve  votes  for  and  ten  against. 

Mr.  Dickson:  Now  I  want  to  have  a  vote  on  my  original 
motion,  if  I  may,  just  an  expression  of  opinion  from  this  Con- 
ference. 

The  Chairman:   What  is  your  motion?     State  it  again. 

Mr.  Dickson:  That  it  is  the  sense  of  this  Conference  that  the 
law  should  be  compulsory  in  form,  but  elective  in  fact,  pro- 
viding in  the  first  instance  that  the  employer  shall  pay  the  com- 
pensation according  to  the  scale  set  forth  in  the  act,  but  reserv- 
ing to  both  employer  and  employee  their  common  law  remedies, 
including  trial  by  jury,  providing,  however,  as  to  the  employer 
that,  if  he  refuses  to  pay  the  compensation  according  to  the 
scale  provided  and  forces  the  employee  to  his  action  at  the 
common  law,  he  shall  not  escape  liability  by  reason  of  either  the 
fellow-servant  rule,  the  assumption  of  the  risk,  or  the  contribu- 
tory negligence  of  the  employee,  unless  his  negligence  be  greater 
than  that  of  the  employer,  in  which  event  the  damages  shall 
be  apportioned  according  to  the  relative  degree  of  negligence, 
and  the  burden  of  proof  shall  be  on  the  employer. 


268 

The  Chairman:  As  I  understand  that  motion,  and  I  want  to 
be  straight  on  this,  I  understand  you  are  injecting  into  it  the 
element  of  contributory  negligence? 

Mr.  Dickson:    It  is  there. 

The  Chairman:   Which  has  been  already  passed  on  by  us. 

Mr.  Dickson:  For  the  purpose  of  securing  a  vote.  This 
speaks  in  this  rule  that  he  shall  not  escape  liability  by  reason  of 
either  the  fellow-servant  rule,  the  assumption  of  risk,  or  contribu- 
tory negligence  of  the  employee. 

The  Chairman:  If  you  repeal  the  common  law,  you  will 
do  away  with  that. 

Mr.  Wigmore:  I  think  Mr.  Dickson's  proposition  is  substan- 
tially different  from  the  other  three,  for  this  reason:  it  endeavors 
to  obviate  the  objection  Mr.  Lowell  finds  in  Massachusetts  that, 
if  you  simply  make  it  optional,  that  is,  as  regards  employees  and 
employers  both,  you  have  no  club  to  make  the  employer  go  into 
it  who  does  not  want  to  go  into  it.  The  sentiment  there  pro- 
posed is  one  that  is  in  the  minds  of  a  good  many  of  us.  So 
take  the  present  common  law  and  make  it  as  hard  as  possible 
for  an  employer  by  taking  away  the  fellow-servant  rule  and 
contributory  negligence  and  the  assumption  of  risk.  If  we  are 
going  to  do  anything,  let  us  stop  right  there,  and  that  would 
stiffen  up  the  common  law  rule  and  make  it  very  hard. 

The  Chairman:  This  is  expressing  the  opinion  that,  if  we 
make  up  our  minds,  in  drafting  the  bill,  we  can  do  it  one  waj^ 
submit  one  or  the  other  form. 

Mr.  Lowell:  May  I  ask  whether  the  employee  has  a  right  to 
come  in  under  this  scheme  or  not?  What  I  mean  by  that  is, 
Is  it  possible  for  the  employees  to  say,  "I  will  come  in  under 
your  common  law  with  these  defences  waived"?  If  that  is  open 
to  the  employees,  I  don't  believe  in  it. 

Mr.  Dickson:  If  the  employee  refuses  to  come  in  under  the 
Compensation  Act,  he  must  take  the  common  law  as  it  stands, 
with  the  fellow-servant,  the  assumption  of  risk,  and  contributory 
negligence  in  it,  which,  we  know,  in  practice  knocks  out  probably 
eighty  per  cent,  of  the  cases. 

A  Member:  The  difficulty  with  that  motion  is  that  it  gives 
one  body  of  law  to  the  employers  and  another  body  of  law  to 
the  employees. 

Judge  Holloway:  The  motion  Mr.  Dickson  has  made  em- 
bodies my  idea  when  I  came  here,  independently  of  any  con- 


269 

stitutional  question,  and  I  did  not  give  that  any  consideration 
whatever.  To  obviate  the  objection  that  Mr.  Wigmore  made, 
I  had  in  my  mind  to  coerce  the  employees,  if  you  will  pardon  the 
expression.  Judge  Sanborn  says  this  is  a  constitutional  co- 
ercive measure.  Now  my  theory  was  to  coerce  the  employees. 
For  instance,  in  Montana  we  have  a  section  in  the  statute  that 
leaves  it  to  the  jury  entirely  to  fix  the  amount  of  recovery  in 
case  of  death  or  of  injury  by  wrongful  act.  In  thirteen  of  the 
States,  I  believe,  there  has  been  a  limitation  of  the  amount  of 
recovery  to  five  thousand  dollars.  In  two  or  three  of  the  States 
it  is  ten  thousand  dollars,  and  possibly  other  States  have  other 
limitations.  Our  theory  was  in  that  section  of  our  code  to  limit 
the  amount  that  the  employee  is  to  get  in  case  he  went  into  the 
common  law  court.  In  other  words,  if  he  understands  that,  when 
he  tries  to  work  from  under  the  Compensation  Act,  he  must 
know  that  he  must  not  only  take  the  chances  of  a  jury  trial,  but 
that  the  amount  which  he  can  recover  when  he  divides  with  his 
attorney  will  not  yield  him  any  more  than  the  Compensation  Act, 
then  he  will  come  under  the  Compensation  Act  in  preference  to  the 
other. 

Mr.  Wigmore:  That's  all  right. 

Judge  Holloway:  We  compel  him  to  go  into  a  position 
under  which  he  will  be  limited  in  the  amount  he  can  recover  in 
case  he  elects  to  pursue  his  common  law  rights  in  preference  to 
the  other. 

The  Chairman:  May  I  make  the  suggestion  here?  I  am  a 
member  of  that  committee,  and  I  would  rather  be  relieved  from 
action  on  it  if  we  are  going  to  make  the  elective  clause  vital. 
Now  that  is  not  any  sore  spot.  I  could  not  conscientiously, 
with  my  information  on  the  subject,  vote  for  such  a  thing,  because 
I  think  it  will  leave  practically  all  the  evils  of  the  old  system 
and  add  the  burdens  of  the  new,  and  I  could  not  conscientiously 
recommend  any  such  law  to  the  Legislature  of  Minnesota  after 
the  study  I  have  given  to  it,  because  it  is  against  my  judgment. 
Now  I  do  not  mean  to  influence  this  vote  at  all  by  any  such  state- 
ments, but  I  think  that  it  would  be  putting  me  in  such  a  posi- 
tion that  I  could  not  work  upon  the  law,  because  I  do  not  believe 
you  could  make  a  valid  one  in  that  way,  and  I  could  not  make 
out  one  that  I  would  not  be  able  to  recommend  to  the  Com- 
mission as  being  a  valid  law.  I  would  hate  to  recommend  one 
that  I  thought  was  not  valid. 


270 

Judge  Holloway:  It  does  not  seem  to  me  the  suggestion 
made  by  Mr.  Browne  is  wise.  It  may  be  that  in  IlHnois  they  can 
pass  this  compulsory  measure,  and  in  Minnesota,  but  that  we 
cannot  do  it.  I  think  the  section  in  the  bill — and  I  think  you  are 
broad  enough  to  take  part  in  the  formation  of  it — there  should 
be  a  section  in  the  bill  that  will  make  it  uniform  in  those  States 
where  they  are  forced  to  adopt  an  elective  principle  in  preference 
to  no  bill  at  all. 

The  Chairman:  You  have  had  two  experiences  in  Illinois. 
There  was  the  Commission  in  1905,  with  Professor  Henderson 
and  Dean  Kinley  on  that  Commission,  two  of  the  ablest  men  that 
ever  were  engaged  on  the  subject.  On  the  advice  of  their  at- 
torney that  they  could  not  pass  a  compulsory  law,  they  recom- 
mended one  of  those  schemes  that  this  would  be,  and  it  was  lost 
in  the  Legislature.  You  had  a  second  commission  in  Illinois 
having  recommended  such  a  scheme,  and  they  would  like  to  ga 
back  on  it, — I  mean,  as  far  as  labor  is  concerned.  And  you  have 
the  experience  of  Massachusetts,  that  they  passed  a  law  which 
was  not  used,  which  did  not  have  the  coercive  features  in  it. 
And  you  have  the  weight  of  the  judgment  of  the  gentlemen  from 
Wisconsin. 

Mr.  Dickson:  May  I  say  that  after  you  take  a  vote  on  this, 
regardless  of  the  results,  I  should  like  to  have  the  privilege  of 
requesting  the  committee  to  prepare  a  bill  based  on  both  ideas. 

Mr.  Lowell:  That's  the  way. 

The  Chairman:  That  is  what  I  want  to  know.  That  is 
what  I  wanted  to  suggest. 

Mr.  Wright:  Though  I  favor  the  compulsory  bill,  I  would 
rather  have  a  bill  as  we  drafted  it  than  no  bill  at  all.  The  bill 
by  Professor  Henderson  provided  a  maximum  of  fifteen  hundred 
dollars,  and  the  employee  paid  the  larger  portion  of  it  himself. 
It  was  entirely  inadequate.  While  it  was  valuable  in  bringing 
about  discussion,  I  would  rather  have  the  bill  as  we  drafted  it 
in  our  reports  than  no  bill  at  all.  If  we  were  strong  enough  to  go 
ahead  and  get  a  compulsory  bill,  I  would  prefer  that,  but,  if  we 
cannot  get  anything  else,  I  would  prefer  the  kind  of  a  bill  in  our 
report  and  advocate  that. 

Mr.  Bent:  Mr.  Wright  represents  the  employees,  and,  as  far 
as  I  know  their  views,  I  share  their  views  absolutely.  We  like 
the  plan  of  the  Illinois  Commission.  It  provides  a  plan  for  com- 
pensation. 


271 

Mr.  Boyd:  I  want  to  call  attention  to  one  fact  that  appears 
from  this  discussion :  from  what  source  did  all  this  idea  of  compen- 
sation trickle  down  from?  Here  we  have  had  an  agitation  which 
has  been  agitated  for  a  few  years,  I  think,  in  England.  But  it 
came  from  one  man's  mind,  and  that  was  Bismarck.  On  what 
ground  was  he  able  to  make  it  a  law, — on  what  principle  was  he 
able  to  put  it  through  the  Reichstag  and  make  it  a  law?  When 
he  tried  to  put  through  accident  insurance,  it  was  carried  only 
by  a  small  majority.  Yet  he  drove  it  through.  It  was  on  the 
sole  ground  of  the  police  powers,  or  the  poor  law, — that  it  is  a 
national  necessity,  a  necessity  of  the  people.  And  it  has  been 
pointed  out  here,  without  going  into  detail,  that  eighty  per  cent, 
of  accidents,  five  hundred  and  thirty-six  thousand  accidents, 
have  no  compensation  at  all.  You  are  furnishing  a  new  right, 
a  new  remedy.  And,  as  has  been  pointed  out  by  Mr.  Bailey, 
it  is  in  the  nature  of  an  equitable  right.  And  for  that  reason 
it  should  be  obligatory  on  both  parties.  It  comes  back  to 
that.  And  for  the  same  reason  it  is  a  national  necessity, 
and  for  the  same  reason  that  a  compulsory  educational 
scheme  is  required  for  children  from  six  years  to  fourteen 
years  of  age  to  go  to  school,  regardless  of  whether  their  parents 
want  them  to  go  or  not,  so  this  is  a  national  necessity  for 
the  general  benefit  of  society.  And  on  the  same  principle 
it  is  necessary  to  protect  society  against  injury  to  industry, 
against  having  forced  on  it  the  burden  of  such  a  large  number  of 
injured  people.  And  that  is  generally  the  principle  of  the  police 
power  or  the  poor  law. 

Mr.  Bailet:  I  shall  vote  on  this  proposition  with  the  under- 
standing that  it  means  that  the  committee  are  going  to  be  asked 
to  frame  something  both  ways. 

The  Chairman  :  Is  that  the  understanding,  that  the  committee 
will  be  instructed  to  frame  a  bill  both  ways? 

Mr.  Dickson:  Yes. 

A  Member:  May  I  make  the  amendment  that  the  committee 
have  pretty  wide  discretion  as  to  preparing  something  both  ways? 

The  Chairman:  If  these  gentlemen  come  to  draft  this  law 
in  the  light  of  the  ideas  that  have  come  to  them,  they  will  have  to 
have  at  least  a  little  discussion  and  they  will  have  to  have  a  little 
discretion  to  do  the  best  they  can  with  it. 

The  motion  was  seconded  and  put  to  the  meeting,  and  carried 
unanimously. 


272 

Mr.  Dickson:  I  move  that  the  drafting  committee  be  re- 
quested to  draw  up  two  provisions,  one  based  on  the  exclusive 
liability,  that  is,  repealing  the  common  law  liability  so  far  as  it 
shall  affect  this  question,  and  the  other  based  on  the  elective  idea. 

The  Chairman:  The  motion  is  that  the  drafting  committee 
draw  up  two  provisions,  one  with  the  exclusive  remedy,  which 
means  the  repeal  of  the  common  law,  and  the  other  for  the  elec- 
tive scheme,  which  shall  carry  with  it  sufficient  limitations  on 
both  parties  as  to  induce  them  to  come  in. 

The  motion  was  seconded  and  put  to  the  meeting,  and  carried 
unanimously. 

Miscellaneous  Business. 

Mr.  Lowell:  Apparently,  we  have  transacted  all  the  business 
which  is  before  this  Conference,  and  of  the  Conference,  and  I 
want  to  simply  say  from  the  Massachusetts  Commission,  as  being 
the  originator  of  this  meeting,  that  one  of  the  principal  reasons 
to  my  mind  why  we  have  done  as  well  as  we  have  done,  and  we 
all  admit  that  we  have  done  extremely  well,  is  on  account  of  our 
chairman,  Mr.  Mercer.  I  wish  to  offer  a  motion  which  I  will 
ask  you  to  accede  to  and  not  let  him  put  it,  that  every  one  who  is  in 
favor  of  a  sincere  vote  of  thanks  to  our  chairman  will  signify 
the  same  by  rising. 

The  motion  was  seconded  and  put  to  the  meeting  by  Mr. 
Lowell,  and  carried  unanimously  by  a  rising  vote. 

Mr.  Rohr:  Mr.  Chairman,  I  would  like  to  make  a  motion 
to  the  effect  that  all  of  those  in  favor  of  extending  the  thanks  of 
this  Conference  to  the  Massachusetts  delegation  for  originating 
the  idea  of  holding  this  Commission  will  express  the  same  by  a 
rising  vote. 

The  motion  was  seconded  and  put  to  the  meeting,  and  carried 
unanimously  by  a  rising  vote. 

The  Chairman:  Gentlemen,  on  behalf  of  the  Chair,  I  simply 
want  to  say  that  this  is  an  unexpected  honor,  both  as  to  the 
chairmanship  and  as  to  the  vote.  If  I  have  done  anything  to 
contribute  to  this  meeting,  the  exceptional  honor  you  have  con- 
ferred on  me  in  presiding  over  it  is  sufficient  recompense,  and  I 
assure  you  that  I  have  derived  considerable  benefit  personally 
from  this  Conference.  I  tried  to  bring  this  about  last  summer, 
but  found  there  was  not  quite  enough  enthusiasm  on  the  matter 
where  it  would  be  accepted.  But  we  have  got  to  a  time  when 
we  must  put  our  ideas  in  shape. 


273 

I  thank  you  for  the  honor  you  have  conferred  upon  me  in  being 
chairman  of  this  Conference. 

Mr.  Bent:  We  passed  a  very  definite  vote  in  regard  to  the 
publication  of  the  proceedings  of  these  meetings  yesterday.  In 
passing  that  vote,  we  failed  to  take  into  consideration  the  sug- 
gestion that  was  made  that  these  proceedings  would  be  extremely 
valuable  in  the  libraries.  Now  it  seems  to  me  that  we  ought  not 
to  limit  the  secretary  of  this  Conference  in  determining  the  exact 
number  to  be  printed,  but  we  should  leave  some  leeway  for  the 
opportunity  of  supplying  copies  at  a  reasonable  price  to  all  those 
libraries  and  institutions  of  learning  and  other  bodies  desiring 
the  publication.  I  would  therefore  move  you,  Mr.  Chairman, 
that  we  amend  that  part  of  the  motion  regarding  the  number  and 
making  it  flexible;  that  is,  a  sufficient  number  in  addition  to  the 
one  thousand  that  are  to  be  distributed  to  the  several  Commis- 
sions, that  they  be  struck  off  within  the  discretion  of  the  secretary 
for  other  purposes. 

Mr.  Rohr:   I  second  the  motion. 

The  Chairman:  Before  that  is  put,  I  think  the  two  gentle- 
men from  Illinois  were  not  present  at  the  end  of  the  meeting, 
and  I  think  it  might  be  well  to  explain  what  we  did.  We  voted 
on  the  question  of  the  distribution  of  expenses  amongst  the  States 
that  are  connected  with  this  Conference,  and  the  stenographer's 
expenses,  and  the  expenses  of  this  Conference,  and  the  expense 
of  the  thousand  copies,  and  the  suggestion  was  made,  in  view  of 
the  experiences  of  other  proceedings,  there  would  be  a  good  many 
others  that  would  want  these  proceedings.  I  simply  want  to 
make  this  suggestion,  that  the  secretary  put  the  price  high  enough 
to  cover  the  cost,  as  far  as  he  can,  of  these  proceedings.  At  the 
Atlantic  City  Conference  we  voted  the  price  of  fifty  cents  for 
this  book  before  it  went  in  print,  and  we  found  that,  in  fact,  after 
we  did  get  through  revising  it,  it  cost  us  more  like  a  dollar  apiece, 
and  our  Commission  has  lost  on  them  every  time  we  published  one. 
Now  I  think  the  motion  should  carry,  but  I  think  there  should 
be  plenty  of  discretion  left  to  the  secretary  to  get  that  in  shape, 
and  I  think  he  ought  to  have  power  to  cause  a  letter  to  be  sent 
out  to  the  Governors  of  every  State  and  Labor  Department, 
and  every  insurance  commissioner,  and  every  Attorney-General 
of  each  State,  the  bigger  Hbraries  in  the  country,  and  all  of  those 
insurance  companies  doing  a  large  amount  of  business,  and  all 
the  larger  employers  that  have  voluntary  schemes  of  their  own. 


274 

and  all  the  Bar  Associations  of  each  State,  asking  them,  before 
the  type  is  taken  down,  how  many  copies  they  want  for  them- 
selves, and  state  what  the  price  would  be.  Now  my  idea  in  that 
is  this:  that  there  is  scarcely  a  State  in  the  Union,  we  will  say, 
from  which  in  the  last  eighteen  months  application  has  not  been 
made  by  some  Bar  Association,  or  by  some  Attorney-General,  or 
by  some  Labor  Department  or  some  insurance  company,  for  copy 
of  the  Atlantic  City  proceedings,  and  we  are  getting  very  near 
to  the  point  where  we  must  stop. 

Mr.  Saunders:  Mr.  Chairman,  the  figure  has  been  stated  at 
a  thousand  copies.  I  think  you  should  say  a  hundred  copies  for 
each  Commission.  I  don't  know  whether  there  are  eight  or  ten 
or  eleven  Commissions  to  share  in  the  expense. 

Mr.  Rohr:  As  regards  that,  I  would  not  be  surprised  if  the 
legislators  of  the  States  we  come  from  wished  to  have  individual 
copies  and  would  demand  a  copy.  I  presume  they  will.  I 
would  not  like  to  be  limited  to  one  hundred  copies.  I  want 
five  hundred,  and  let's  have  them,  if  we  can  pay  for  them. 

Mr.  Saunders:  There  would  be  a  hundred  copies  to  each 
Commission,  anyway. 

Mr.  Alexander:  I  move  you  as  an  amendment  that  we  re- 
quest the  Labor  Department  of  the  government  to  publish  the 
proceedings  of  this  Conference  and  such  other  documents  which 
have  a  direct  bearing  on  the  subjects  under  discussion  as  may  be 
selected  by  a  committee  to  be  appointed  by  the  chairman. 

Mr.  Saunders:  We  shall  still  send  out  the  hundred  copies 
for  each  Commission  in  the  mean  time? 

The  Chairman:   Yes. 

Mr.  Doten  :  I  think  there  should  be  a  saving  clause,  that,  pro- 
viding the  government  does  not  do  this,  we  should  keep  this 
matter  standing  in  type.  We  can  do  that  in  monotype  or  hno- 
type  at  not  much  expense,  so  that  we  can  pubHsh  them  at  another 
time. 

Mr.  Alexander  :  I  think  the  government  will  do  that. 

The  Chairman:  I  assume  that  will  be  done,  but  I  think  that 
saving  clause  is  not  a  bad  idea. 

Judge  Hollo  way:  This  motion  is  merely  to  supplement  the 
action  that  we  have  already  taken,  that  we  leave  it  discretionary 
with  the  secretary? 

The  Chairman:  That  is  a  good  suggestion.  Our  States  may 
want  to  publish  these  things.     I  understand  the  motion  to  be 


275 

in  this  position,  that  this  motion  is  to  be  a  supplement  and  not 
a  substitute  for  the  other  motion  to  the  effect  that  the  Chair  be 
requested  to  appoint  a  committee,  the  number  left  unlimited,  to 
select  documents  that  should  be  pubhshed  by  the  Labor  Depart- 
ment, and  that,  if  it  does  not  publish  them  or  if  it  does,  we  reserve 
to  the  secretary  the  right  to  publish  such  of  them  as  we  want  to, 
and  in  such  number  as  we  wish. 

The  motion  was  seconded,  and  carried  unanimously. 

The  Chairman  :  I  think  we  should  pass  a  hearty  vote  of  thanks 
to  Commissioner  Neill.  I  would  move  a  hearty  vote  of  thanks 
by  a  rising  vote. 

The  motion  was  seconded,  and  carried  unanimously  by  a  rising 
vote. 

Mr.  Schutz:  As  these  proceedings  are  going  out,  I  wish  to 
say  that  I  personally  represent  no  one  here.  Some  one  from  Con- 
necticut might  inquire  why  I  was  here,  and  it  seems  to  me  that 
there  should  be  properly  put  as  a  preface  to  this  report  that  we 
are  simply  voting  as  individuals  representing  ourselves,  and  not 
in  any  sense  representing  a  particular  commission  or  state. 

The  Chairman:  That  is  the  understanding  throughout  the 
record. 

A  Member  :  That  should  be  in  it. 

Mr.  Bent:  In  behalf  of  the  Illinois  Commission  I  wish  to  ex- 
press a  feeling  of  appreciation  and  a  sense  of  the  high  honor  you 
have  shown  to  this  State  and  to  Chicago  by  your  presence  here. 

The  meeting  then  stood  adjourned. 


276 


Advisory  Conference,  Saturday,  November  12,  1910, 
2.30  P.M. 

A  Conference  was  held  with  the  drafting  committee,  which 
was  attended  by  the  lawyer  members  of  the  Commissions. 

The  Chairman:  I  want  to  bring  out  one  or  two  matters  for 
informal  discussion.  At  the  threshold  of  this  proposition  in  the 
gathering  of  these  different  employments,  suppose  that  we  should 
come  to  the  conclusion  that  we  cannot,  on  account  of  the  liberty 
of  contract,  cover  any  employment  that  is  not  hazardous,  at  least 
to  the  extent  that  is  covered  by  this  act.  I  should  like  to  have 
any  suggestions  that  may  occur  to  you  as  to  how  you  would 
define  hazardous  employments. 

Mr.  Bailey  :  I  have  an  idea  or  two  on  that  which  I  would  like 
to  bring  out  briefly,  because  we  did  not  go  into  that  very  thor- 
oughly in  the  previous  discussion.  Professor  Williston  was  some- 
what impressed  by  Judge  Sanborn's  reasoning.  He  was  troubled 
a  good  deal  more  than  I  was  about  the  need  of  a  pretty  exact 
classification.  If  you  are  going  to  pick  out  a  list  of  industries, 
as  they  did  in  New  York,  and  as  they  did  in  England  to  begin 
with,  he  was  impressed  with  the  idea  that  you  must  still  further 
classify  it  by  picking  out  the  dangerous  positions  in  that  list. 
That  is  to  say,  taking  the  railroads,  being  careful  not  to  include 
those  employees  on  the  railroad  that  were  not  subjected  to 
hazards. 

Mr.  Lowell:  Allow  me  to  interrupt  a  moment.  The  Mellor 
case  is  quoted. 

Mr.  Bailey:  That  is  the  218th.  To  tell  the  truth,  I  am  not 
sure  that  Mr.  WilUston  read  that. 

The  Chairman:  That  was  against  the  Atchison,  Topeka  & 
Santa  Fe  Railroad,  I  believe. 

Mr.  Bailey:  I  think  Mr.  Lowell  has  a  scheme  for  including 
all  employments,  and  I  have  another  one.  How  near  we  are 
together,  I  do  not  know.  But  it  did  seem  to  me  desirable,  if  it 
could  be  done  safely,  to  get  rid  of  the  fist  such  as  the  New  York 
people  had  made,  and  I  noticed  in  the  New  York  act  that  provides 
the  list  they  also  confined  it  to  those  portions  of  the  employ- 
ment selected  that  had  an  inherent  risk.  They  said  "necessary 
And  inherent."     I  think  the  word  "necessary,"  perhaps,  is  too 


277 

strong.  I  rather  like  the  word  "inherent."  Perhaps  that  is 
the  better  word  and  sufficiently  covers  it,  and,  if  you  take  all 
employments,  as  we  propose  to  do,  perhaps  you  ought  to 
confine  it  to  the  inherent  risks  of  the  employment  or  business, 
if  you  keep  it  as  broad  as  was  suggested.  My  own  feeling  is  that 
there  are  strong  reasons  for  saying,  as  they  did  in  the  New  York 
acts,  that  they  should  be  confined  to  industrial  occupations. 
That  would  cut  out  domestic  servants,  and  perhaps  the  commit- 
tee will  go  further  and  make  it  broader.  If  you  do  confine  it  to 
risks  and  dangers  inherent  in  the  nature  of  the  business,  that 
brings  you  to  a  considerable  extent  under  the  New  York  law,  and 
you  will  get  the  benefit  of  whatever  decision  is  finally  made  under 
the  New  York  statutes.  You  may  pick  out  a  section  here  and 
there  as  possibly  useful,  and  then  in  the  definitions  I  followed  the 
New  York  idea  of  confining  it  to  the  industrial  and  business  occu- 
pations, and,  as  to  definitions,  I  would  say  that  you  do  not  or- 
dinarily like  to  get  a  matter  of  the  utmost  importance  in  the  defini- 
tion, although  oftentimes  you  find  them  there. 

I  want  to  hear  what  Mr.  Lowell's  solution  is  for  the  troubles 
that  arise  from  classification.  If  you  are  going  to  have  a  classi- 
fication, you  are  not  going  to  accomplish  much,  unless  you  do 
confine  it  to  the  inherent  risk. 

Mr.  Lowell:  I  will  answer  that  very  briefly.  I  think  that  all 
of  the  cases  which  have  come  up  to  the  Supreme  Court  of  the 
United  States  are  based  upon  the  proposition  of  classification. 
In  fact,  they  all  have,  as  a  matter  of  fact, — they  have  been  cases 
of  that  kind.  They  classify  mines  as  a  certain  kind  of  a  risk. 
They  classify  railroads  as  a  certain  kind  of  risk,  and  classify  in 
other  ways.  It  comes  up  to  the  Supreme  Court  of  the  United 
States  under  the  Fourteenth  Amendment,  and  the  question  arises, 
Is  the  classification  a  proper  one?  Can  you  select  a  mine,  can 
you  select  a  railroad,  and  impose  on  those  industries  something 
that  you  do  not  impose  on  anything  else?  My  idea  is  that,  when 
you  have  a  law  covering  everything,  we  do  not  classify  at  all,  and 
therefore  it  is  not  a  question  of  unequal  protection  or  anything 
else.  You  do  away  entirely  with  the  troubles  under  all  of  these 
decisions.  For  instance,  the  classification  which  is  made  in 
Massachusetts,  leaving  out  domestic  servants  and  agricultural 
laborers  under  the  Employers'  Liability  Act, — that  has  been 
held  a  good  classification.  But,  if  you  include  domestic  servants 
and  agricultural  laborers,  then  there  is  not  any  classification  at 


278 

all.  It  is  not  a  question  of  whether  you  can  hit  a  railroad  or  hit 
a  mine.  There  is  no  question  of  that  kind  at  all  in  it,  because 
this  thing  is  equal  for  everybody.  So,  I  think,  you  get  entirely 
around  the  idea  that  troubles  New  York. 

The  Chairjvian:  Personally,  I  quite  agree  with  that.  Unless 
it  be  called  classification  to  classify  everything,  or  group  every- 
thing, on  the  basis  of  the  number  of  accidents  they  have.  That 
gets  over  the  objection  as  to  distinctions,  I  think,  and,  I  believe, 
can  be  done.  If  a  man  has  an  occupation,  or  a  concern  has  an 
occupation,  which  creates  an  accident  that  results  in  a  broken 
leg,  an  accident  arising  out  of  the  course  of  the  employment  and 
due  to  it,  to  that  person  it  is  just  as  disastrous  as  it  would  be  to 
each  of  twenty  other  men  that  might  have  their  legs  broken  in 
some  employment  that  would  be  called  more  hazardous.  If  you 
are  going  to  have  one  system  of  law,  or  code,  you  will  remove 
many  of  the  difficulties  if  you  can  adopt  a  code  system  by  dis- 
pensing with  your  common  law  for  every  negligent  action  which 
you  can, — everything  arising  out  of  the  course  of  employment; 
and  then  the  question  of  liability  is  directly  in  proportion  to 
the  accident  that  each  fellow  has.  Every  person  who  is  injured 
directly  has  the  right  to  get  exactly  the  same  compensation  as 
any  other  person;  and  it  does  not  impose  any  burden  on  a  fellow 
running  a  slightly  dangerous  occupation  different  from  those  of 
a  more  hazardous  occupation,  except  as  to  the  exact  relative 
positions  they  occupy  towards  the  employee. 

Judge  Holloway:  To  my  mind,  the  objection  that  Mr.  Lowell 
is  trying  to  obviate  is  not  the  objection  that  will  arise.  What 
kind  of  a  provision  are  you  going  to  put  in  your  draft  of  the  bill 
here  as  to  employers  and  employees  contracting  or  waiving  lia- 
bility under  the  statute?     Are  you  going  to  forbid  it? 

The  Chairman:  Suppose  we  draft  a  bill  on  both  bases,  each 
way? 

Judge  Holloway:  In  the  bill  you  are  drafting  here,  are  you 
going  to  have  a  provision  against  contracting  out  between  the 
employer  and  the  emploj^ees,  or  waiving  liability  under  this  act? 

Mr.  Lowell:  We  voted  to  have  it. 

JuTDGE  Holloway:  If  you  don't,  it  will  be  almost  worthless, 
because  the  employers  would  coerce  their  men  to  sign  any  sort  of 
a  contract. 

The  Chairman:  I  would  make  that  so  they  could  not  con- 
tract out  of  the  essential  provisions  of  this  law. 


279 

Mr.  Bailey:  Except  under  the  provisions. 

The  Chairman:  Then  they  must  put  in  all  the  provisions 
of  the  law. 

Judge  Holloway:  I  assume  you  must  have  that,  in  order 
to  make  it  of  any  value  at  all.  If  you  do  have  that  provision 
in  there  against  contracting  out,  upon  what  theory  can  you  say 
to  me  that  you  cannot  make  a  contract  with  a  farm  laborer  by 
which  he  waives  the  advantages  of  this  particular  statute?  For 
instance,  in  Montana  to-day,  by  express  statutory  enactment, 
a  common  carrier  may,  by  special  contract,  reUeve  himself  from 
liabihty  for  everything  except  gross  negligence. 

Mr.  Bailey  :  By  giving  a  better  rate. 

Judge  Holloway:  Of  course,  primarily,  that  is  the  considera- 
tion that  moves.  But  by  what  authority  would  you  say,  as 
I  say,  to  the  farmer  that  he  cannot  contract  with  his  farm  la- 
borer? My  opinion  has  always  been  that  the  only  theory  on 
which  you  could  justify  such  interference  as  to  freedom  of  con- 
tract would  be  on  the  basis  of  the  police  powers,  and  that  does 
not  reach  the  question  of  farmers  or  domestic  servants  or  any- 
thing of  that  kind.  My  judgment  on  the  question  of  freedom 
of  contract  will  be  that  it  will  be  bound  to  be  a  serious  obstacle, — 
rather  more  so  than  the  question  of  unfair  classification. 

The  Chairman:  I  think  that  is  so,  too.  But  I  think  that,  if 
you  classify  it  so  it  stands  on  the  basis  of  the  risk,  you  will 
have  every  accident  due  to  the  course  of  employment  under, 
the  police  power  would  extend  to  those  accidents,  and  only  to 
that  extent.  I  do  not  think  it  will  result  in  the  farmer  not  being 
able  to  contract  with  the  laborer  about  work;  but  if  you  fol- 
lowed this  law  that  will  be  drafted  for  the  purpose  of  remedy,  as 
against  a  contract,  anything  against  it  will  be  against  the  policy 
of  the  State,  as  declared  by  the  Legislature,  as  a  reasonable  basis. 

Now,  if  that  basis  is  only  that  they  should  pay  for  an  accident 
arising  in  the  course  of  employment,  how  can  any  court  say  there 
was  no  basis  for  that  Uability? 

Mr.  Bailey:  I  want  to  ask  Mr.  Lowell  a  question:  Assume 
that  we  are  going  to  have  language  which  will  make  a  class  which 
includes  all  employees — 

Mr.  Lowell:  I  object  to  the  word  ''class." 

Mr.  Bailey:  That  is  the  broadest  term.  We  are  talking  of 
employees. 

Mr.  Lowell  :  There  is  no  class  to  it.  You  are  placing  every- 
body in  it  in  a  service  of  any  kind. 


280 

Mr.  Bailey:  That  is  a  class.  Now  assume — and  we  will 
take  it  in  that  broad  way — that  the  compensation  shall  be  due 
or  paid  for  injuries  which  result  from  a  danger  or  risk  inherent 
in  the  nature  of  the  business,  the  same  as  they  do  in  New  York, 
whether  it  is  dangerous  or  not. 

Mr.  Lowell  :  That  seems  to  me  to  be  a  bad  feature  of  the  New 
York  bill.  In  every  case  you  have  got  to  prove  it  is  an  inherent 
risk.  That  means  you  must  have  litigation  in  every  case.  If  it 
is  an  inherent  risk  in  the  business,  you  cover  it.  The  decision 
ought  to  be  that  everything  which  was  incident  to  the  employ- 
ment is  a  risk  and  is  an  inherent  risk.  Now  why  put  in  those 
words?  They  do  not  have  any  effect  except  to  give  the  parties 
a  chance  to  litigate.  The  employer  will  always  say  that  it  was 
not  an  inherent  risk,  and  it  is  opening  up  litigation  in  every  single 
instance  which  happens,  and  litigation  which  is  entirely  unneces- 
sary. If  you  say  that,  if  an  accident  arises  in  the  course  of  the 
business,  or  whatever  the  phrase  is,  then  the  employer  shall  be 
liable  for  it,  you  cover  everything,  and  it  does  not  do  any  good 
to  say  that  it  is  an  inherent  risk. 

Mr.  Browne:  I  think  you  are  perfectly  right.  I  spoke  of 
the  New  York  law  merely  as  an  illustration  in  the  discussion. 
In  the  New  York  law  there  are  a  nmnber  of  ambiguous  ques- 
tions, open  for  judicial  construction.  I  think,  if  you  are  going 
to  define  hazardous  employments,  I  should  name  them  abso- 
lutely, one  by  one,  and  let  each  tub  stand  on  its  own  bottom,  as 
far  as  the  courts  may  or  may  not  say  it  is  in  fact  hazardous. 

I  want  to  make  this  suggestion  as  to  the  different  classes.  I 
understand  in  England  one  class  includes  domestics  and  all  that 
sort  of  employment.  You  may  meet  with  opposition  which  will 
be  annoying.  For  instance,  I  was  talking  with  my  host  last 
night  on  Prairie  Avenue,  and  he  had  some  information  on  the 
subject  himself.  He  carries  quite  a  large  retinue  of  servants 
on  a  broad  accident  policy.  He  gave  me  one  or  two  instances 
where  an  accident  occurred.  For  instance,  one  of  the  servant- 
girls  fell  down  an  area  way  to  the  garage  and  twisted  her  leg 
badly.  That  was  compensated  for  simply  on  the  basis  of  the 
medical  attendance.  But  yet  that  is  a  painful  thing.  That  is 
a  good  deal  like  the  opposition  which  comes  to  the  tariff  law. 
Whenever  you  put  up  a  rate  on  things  that  the  lady  of  the  house, 
the  housewife  has  to  pay,  you  will  find  that  that  is  more  harmful 
than  anything  else.    So,  if  you  make  it  apply  to  all  employments 


281 

in  that  way,  you  will  give  rise  to  friction  which  in  this  new  scheme 
would  be  better  avoided. 

Mr.  Lowell:  For  the  purpose  of  this  draft,  we  are  bound  to 
put  in  all  employment.  But,  when  you  get  back  to  the  separate 
States,  you  may  or  may  not  find  it  necessary  to  take  some  out. 
It  may  be  in  Massachusetts  that  they  would  not  stand  for  domes- 
tic servants  and  agricultural  laborers.  Then,  in  order  to  get 
it  through,  you  might  have  to  exempt  those  two. 

The  Chairman:  You  would  have  to  modify  the  draft. 

Mr.  Lowell:  That  is  the  purpose  of  this  committee  They 
must  all  go  in. 

A  Member:  Of  course,  that  knocks  out  the  theory  of  the  no- 
class  feature. 

Mr.  Lowell:  That  special  thing  has  been  passed  on  by  the 
Massachusetts  court  and  held  valid.  That  is  a  different  classifica- 
tion which  the  Massachusetts  com-t  has  held  for  years  to  be  all 
right.  For  eighteen  years  our  Employers'  Liability  Act  has  ex- 
cepted domestic  servants  and  agricultural  laborers.  I  do  not 
know  that  it  has  ever  been  decided  in  so  many  words  that  it  is  all 
right,  but  we  had  a  case  recently  in  which  the  fellow  who  was  in- 
jured was  an  agricultural  laborer,  and  the  court  assumed,  with- 
out passing  on  that  point,  that  it  was  all  right,  and  we  have  been 
acting  under  it  now  for  over  twenty  years. 

Mr.  Browne:  It  has  been  decided  by  silence. 

Mr.  Lowell:  I  rather  think  by  silence. 

Mr.  Bailey:  I  don't  want  to  talk  too  much,  but  I  am  very 
much  interested  in  what  Mr.  Lowell  says,  and  I  am  inclined  to 
his  view  of  the  subject,  because  I  assume  fully  that  you  cannot 
get  away  from  what  he  says, — that  these  words  ''risks  or  dangers 
inherent  in  the  nature  of  the  business  or  employment"  will  prove 
very,  very  troublesome.  What  he  says  is  absolutely  true,  that 
you  don't  want  them,  unless  you  have  got  to  confine  this  to  some- 
thing dangerous,  somehow,  in  order  to  get  it  under  the  police 
power.  And  that  is  why  I  speak  about  that.  The  language 
which  was  used  in  New  York  to  take  out  domestic  servants  was 
rather  clever.  It  says  that  a  workman  does  not  include  a  per- 
son who  is  employed  otherwise  than  for  the  purposes  of  the  em- 
ployer's trade  or  business.  Now  I  suppose  housekeeping,  unless 
it  is  a  boarding-house,  is  not  a  trade  or  business,  and  it  would 
leave  out  that. 

Mr.  Browne  :  It  is  a  trade  or  business  because  it  is  licensed,  I 
presume,  in  every  State. 


282 

Mr.  Bailey:  That  is  a  boarding-house? 

Mr.  Browne:  A  boarding-house. 

Mr.  Bailey:  Yes,  but  I  say  an  ordinary  household  is  not  a 
trade  or  business :  therefore,  an  ordinary  domestic  servant  would 
not  come  under  the  act. 

Mr.  Browne:  Domestic  servants  employed  in  a  boarding- 
house  would. 

Mr.  Bailey:  Yes,  that  limits  the  class  of  employees  to  those 
employees  who  are  engaged  by  a  man  who  is  carrying  on  a  trade 
or  business.  I  am  not  at  all  disposed  to  say  that  this  ought  to  go 
in,  unless  you  have  got  to  put  it  in  on  the  ground  of  expediency. 
We  are  on  a  practical  matter.  The  evils  which  we  are  seeking  to 
meet  are  in  trades  and  businesses  and  more  especially  in  those  that 
are  dangerous.  But,  if  you  want  to  make  it  broad  enough  to 
include  everybody,  we  have  got  to  tell  the  housekeepers  that  it 
will  only  cost  you  a  dollar  a  year  for  insurance  to  take  care  of  a 
house-servant,  and  then  they  won't  feel  so  badly,  or  tell  them 
something  of  that  kind;  I  think  it  is  not  over  two  dollars  a  year 
that  they  must  pay  for  insurance. 

The  Chairman:  I  won't  take  up  much  time,  but  I  want  to 
say  this,  that  I  think  that  suggestion  you  raise  there  about  the 
house-servant,  for  instance,  may  find  an  obstacle  something  like 
this.  Suppose  you  and  I  are  living  in  a  couple  of  apartment 
houses,  adjoining  each  other.  You  have  a  servant-girl  doing 
eaxctly  the  same  kind  of  work  in  the  kitchen  that  mine  would  be, 
and  I  would  be  keeping  a  boarding-house  next  door.  And  they 
both  fall  down  the  same  pair  of  steps,  both  carrying  a  pail  of 
water,  and  receive  the  same  injury.  Mine  could  recover,  and 
yours  could  not.  We  would  get  into  trouble  on  the  equality 
proposition.  Now,  while  we  had  this  at  the  very  heat  of  discus- 
sion in  Minnesota,  I  went  to  call  on  Judge  Purdy  in  Washington, 
when  he  was  on  the  Federal  Bench  there,  and  he  said  to  me:  ^Why, 
Mercer,  my  servant-girl  fell  on  the  driveway  here  the  day  before 
yesterday,  and  broke  her  leg.  If  I  had  that  law,  I  would  rather 
have  it  than  to  be  in  the  position  where  she  might  sue  me  at  the 
common  law.     As  it  is,  I  took  and  sent  her  to  the  hospital." 

Mr.  Browne  :  So  would  I  rather  have  it  than  the  common  law. 

The  Chairman:  "I  sent  her  to  the  hospital,  without  legal 
obUgation,  as  far  as  I  know.  When  she  gets  out,  she  may  sue 
me,  and  I  will  be  to  the  expense  of  defending.  If  I  could  pay 
for  insurance  for  that  servant-girl,  so  she  would  get  the  benefit  of 


283 

the  wages  she  would  draw  during  the  time  she  was  laid  up 
from  the  fall,  that  might  be  better." 

Mr.  Browne  :  That  is  often  done  now.  There  is  no  law  against 
that. 

The  Chairman:   That's  right. 

Mr.  Schutz:  May  I  ask  in  that  connection:  That  risk  would 
have  to  be  in  the  ordinary  course  of  events  assumed  by  the  em- 
ployer's liability  until  we  have  State  insurance,  and  the  basis  of 
that  insurance — the  cost  of  that  insurance  would  have  to  include 
a  great  variety  of  risks,  so  that  the  chances  are  that  the  cost  of 
that  insurance  would  be  a  good  deal  larger  than  it  is  now,  would 
it  not? 

The  Chairman:  I  think  so.  There  is  a  class  of  poHcies  called 
''non-hazardous  occupations"  where  the  risks  are  very  low.  I 
don't  know  but  they  have  two  classes.  We  are  discussing  this 
just  now,  but  we  shall  dispose  of  this  question  when  we  come  to 
define  what  a  dangerous  occupation  is.  Isn't  that  true,  Mr. 
Lowell?  Don't  they  classify  some  as  hazardous,  some  extra- 
hazardous, and  some  as  non-hazardous? 

Mr.  Lowell:  Yes,  I  beheve  they  do.  But,  if  you  include 
domestic  servants,  what  will  happen  will  be  this:  you  will  have 
a  very  low  rate  on  the  people  who  work  inside  the  house  and  a 
proportionately  high  rate  on  the  chauffeur,  who  works  outside. 

The  Chairman:   You  ought  to  have. 

Mr.  Browne:   You  tax  luxuries. 

The  Chairman  :  Yes,  and  he  is  more  likely  to  get  hurt. 

Mr.  Bailey:  Now,  Mr.  Chairman,  my  time  is  short,  and  I 
want  to  refer  to  one  other  topic,  and  that  is  about  the  lien.  The 
workman  should  have  the  benefit  of  insurance.  It  ought  to  be 
done  as  well  as  possible,  and  the  language  in  Massachusetts  in 
the  law  introduced  there  states  that  the  workman  shall  be  subro- 
gated to  the  rights  of  the  employer.  I  think  there  may  be  some 
objection  to  that,  and  I  worked  out  this  language: — 

''If  any  employer  becomes  liable  under  this  act  to  pay  com- 
pensation to  any  workman,  and  he  is  entitled  to  any  sum  from 
insurance  by  reason  of  his  liability  to  such  workman,  such  work- 
man shall  have  a  lien  upon  the  sum  due  from  the  insurer,  which 
lien  shall  attach  from  the  time  such  workman  first  makes  his 
claim  upon  the  employer  for  compensation,  and  gives  notice  to 
the  insurer,  and,  in  case  several  workmen  shall  have  claims  for 
compensation,  they  shall  have  priority  according  to  the  date 


284 

of  their  notices  respectively."  Now  there  is  no  patent  on  that 
language,  but  something  of  that  sort  you  might  like  to  put  in 
your  bill. 

The  Chairman:  Personally,  I  think  that  that  is  quite  an 
important  matter  to  cover.  But  I  want  to  make  this  suggestion, 
however,  that  has  not  been  brought  out  in  discussion.  I  have 
found  it  in  one  or  two  liability  policies  where  I  have  been  de- 
fending companies  in  negligent  cases.  A  good  many  of  these  com- 
panies have  a  provision  in  their  policy  to  the  effect  that,  if  any 
employer  himself  becomes  bankrupt,  it  shall  only  be  required  to 
pay  what  the  employer  pays.  In  other  words,  if  a  man  running 
a  manufacturing  plant  has  an  accident  and  there  is  a  judgment 
recovered  and  he  goes  into  a  receivership,  and  he  only  pays  ten 
per  cent,  of  the  claims,  they  call  on  the  liability  company  to 
pay  that,  because  it  only  pays  to  them  what  has  been  actually 
paid  out.  Now  I  think  that  is  a  matter  that  ought  to  be  consid- 
ered by  our  committee  when  it  comes  to  draft  that  proposition. 

Mr.  Sanborn:  Is  there  any  objection  to  making  the  insuring 
company  directly  responsible  to  the  employee? 

Mr.  Lowell:  I  have  considered  this  special  point  carefully, 
because  it  is  very  familiar  to  me.  All  of  the  companies  I  know 
anything  about  have  the  provision  which  Mr.  Mercer  has  stated. 
It  is  what  they  call  an  indemnity  policy.  The  insured  employer 
cannot  recover  against  the  insurance  company  unless  he  has 
paid  out  something.  Now,  in  a  case  of  bankruptcy  where  the 
employer  has  not  anything  to  pay  out,  he  has  not  paid  out  any- 
thing. Therefore,  the  company  owes  him  nothing.  And,  of 
course,  if  we  merely  subrogate  the  employee  to  his  employer's 
rights,  he  owes  the  employee  nothing.  That  has  been  held  in 
Massachusetts  in  the  case  of  Bain  v.  Atkins,  that,  where  an  em- 
ployer is  insolvent,  the  employee  has  no  lien  and  cannot  get  any 
lien  on  the  trustee  in  the  bankruptcy.  Mr.  Bailey's  suggestion 
does  not  cover  that. 

Mr.  Bailey:  That  is  right. 

Mr.  Lowell:  I  had  a  talk  with  Professor  Williston  on  this 
subject  of  bankruptcy  and  as  to  what  you  would  do  with  the 
insurance  in  case  of  bankruptcy.  His  idea,  as  he  developed  it 
to  me,  was  this.  He  said,  ''You  cannot  say  that  the  employee 
shall  have  a  right  on  the  insurance  policy,  because  that  is  inter- 
fering with  the  obligations  of  the  contract." 

He  said,  ''AH  you  can  do  is  to  provide  a  kind  of  law  or  pro- 


285 

vision  that  no  insurance  policy  hereafter  issued  in  this  Common- 
wealth, or,  rather,  that  every  insurance  poHcy  hereafter  issued  in 
this  Commonwealth  shall  contain  a  clause  that,  in  event  of  bank- 
ruptcy, money  shall  go  to  the  employee  or  something  of  that  sort." 

And  you  will  find  in  here,  which  is  our  act,  a  very  rough  draft 
of  that  idea.  So  that  you  want  to  consider,  in  framing  your  act, 
that  it  is  a  little  bit  more  difficult  to  do  that  than  it  seems  at 
the  first  blush.  You  must  consider  the  provision  which  merely 
gives  a  Hen  on  the  employer's  rights.  Now,  if  the  employer 
has  no  right,  as  has  been  decided  in  Massachusetts,  or  the  em- 
ployee cannot  get  at  it,  as  has  been  decided  in  Massachusetts, 
it  is  a  lien  that  is  of  no  good.  And,  of  course,  you  don't  need  it, 
if  the  man  is  solvent. 

Mr.  Bailey:  Can  you  couple  them  together  in  any  way? 
Professor  Williston  had  a  little  trouble  about  making  the  work- 
men's right  arise  only  in  the  event  of  bankruptcy.  That  seemed 
to  trouble  him.  And  the  right  of  the  Legislature  to  prescribe 
forms  of  policies  is  well  recognized.  Whether  there  are  any 
limits  to  it  or  not,  I  don't  know. 

The  Chairman  :  Our  court  says  not. 

Mr.  Bailey  :  It  says  there  is  no  limit? 

The  Chairman:  Our  Legislature  has  said  you  cannot  have 
any  other  form  of  fire  policy,  and  the  court  has  settled  that  pro- 
vision is  under  police  powers. 

Mr.  Lowell  :  Here  is  a  rough  draft  which  wants  to  be  changed 
somewhat.  Number  7  covers  that.  This  is  merely  a  general 
form.  You  must  do  it  under  the  State  power  to  say  that  there 
shall  be  such  and  such  a  thing. 

Mr.  Bailey:  I  gather  there  might  be  trouble  for  the  State  to 
legislate  on  a  subject  that  really  relates  to  bankruptcy,  which  is 
prohibited  absolutely  to  the  States,  being  a  matter  which  Con- 
gress has  dealt  with. 

The  Chairman:  I  don't  want  to  fill  up  this  record,  but  I  can 
tell  the  gentlemen  all  I  know  about  it.  Suppose  we  make  our 
law  so  that  there  shall  be  absolute  liability,  and  provide  that,  if 
that  liability  is  insured  sufl&cient  to  cover  both  liabilities,  to 
cover  the  contract  between  the  people,  the  employer  shall  be 
relieved  of  the  payment.  That  could  be  carried  out  as  it  is  done 
in  some  countries.  Then  suppose  there  is  a  provision  in  that  law 
broad  enough  that  the  employer,  if  he  does  insure,  must  insure  to 
cover  that  risk  and  reach  that  under  the  police  powers  as  to  the 


286 

form  of  the  insurance  and  the  nature  of  the  insurance,  that 
will  dispense  with  your  objection,  and  will  leave  it  in  the  position 
so  that  the  company  will  pay  enough  premium  to  cover  the 
whole  proposition  as  an  equitable  matter.  Some  of  the  head 
officers  of  insurance  companies  have  told  me  that  they  are  per- 
fectly willing  to  act  under  the  law  which  is  at  all  reasonable  and 
will  make  their  rates  accordingly.  They  would  like  to  have 
it  uniform  and  in  such  condition  that  it  might  be  done  with  the 
least  expense,  and,  of  course,  they  want  to  make  all  the  profit 
they  can.  ''Make  a  law,  and  we  will  fix  the  rate  accordingly," 
they  say.  That  is  one  of  the  places  where  a  man  needs  protec- 
tion the  worst,  and  I  think  we  can  look  after  that  proposition 
through  the  State  police  powers  and  prevent  the  question  aris- 
ing. 

Now  there  is  another  point  that  I  think  is  very  difficult  for  our 
Commission  to  handle,  according  to  my  view  of  it,  and  I  want 
to  discuss  personally,  and  I  think  Judge  Sanborn  will  agree 
with  me.  If  not,  I  hope  he  will  say  so,  if  he  considers  that  it  is 
not  necessary  to  discuss  it.  That  is  the  point  of  what  you  are 
going  to  say  with  respect  to  whether  this  accident  or  injury 
occurs  in  the  course  of  business,  or  how  you  will  describe  it. 
If  you  say  ''liability  for  any  accident,"  that  opens  up  a  diffi- 
culty. For  in  Nebraska  "accident"  means  one  thing,  and  in 
Washington  it  means  another  thing,  and  in  the  House  of  Lords 
in  England  it  means  another.  In  some  cases  it  means  without 
any  fault  on  the  part  of  the  man  who  is  injured. 

Judge  Hollo  way:  I  should  very  much  regret  using  the  word, 
"accident."     Personal  injury  is  the  subject  of  our  discussion. 

Mr.  Lowell:  Let  me  say  that  in  this  draft  I  left  out  the  word 
"accident." 

Mr.  Bailey:  And  I  have  done  the  same. 

Judge  Hollo  way:  Personal  injury  is  the  subject  under  dis- 
cussion. 

The  Chairman:  I  want  to  offer  a  few  suggestions  on  it.  I 
want  to  take  that  just  a  little  bit  further.  We  have  discussed, 
if  I  am  not  mistaken  here,  the  question  of  bodily  injuries,  and  I 
am  not  quite  sure  but  that  we  have  left  personal  accident.  Any- 
way, we  have  discussed  it  here.  So  that  it  includes  anything  that 
would  be  considered  an  occupational  disease  or  anything  of  that 
sort.  At  the  present  time  there  are  cases  arising  in  different 
parts  of  the  country,  especially  in  certain  kinds  of  manufacturing 


287 

where  there  are  poisonous  substances  that  create  very  bad  in- 
juries. They  put  out  eyes  or  they  create  blood  poisoning,  or 
they  eat  off  fingers,  perhaps.  I  would  like  to  have  your  views, 
if  Judge  Sanborn  feels  the  same  way  about  it,  about  what  we 
would  do  about  that  proposition. 

Mr.  Lowell:  Mr.  Chairman,  may  I  say  right  here  that  the 
Supreme  Court  of  Massachusetts  has  very  recently  indeed  held 
— it  has  not  yet  got  into  the  regular  report — ^that  an  injury  under 
our  Employers'  Liability  Act  does  cover  industrial  diseases? 
This  was  the  case  of  a  man  employed  in  a  stable,  who  got  glanders, 
and  the  court  held  that  that  was  covered  by  ''injury,"  and  it  cited 
a  leading  case  in  England  in  the  House  of  Lords.  So  that  it 
seems  to  me  that  in  Massachusetts,  at  any  rate,  we  have  got  to 
put  in  some  words  saying  that  this  shall  not  cover  industrial 
diseases.  But  you  have  got  to  be  very  careful  about  your  phrase- 
ology. 

Now  I  understand  the  English  law  under  the  Act  of  1897  (be- 
fore the  Act  of  1906  mentioned  industrial  diseases)  covered  dis- 
eases which  could  be  held  to  have  been  received  at  a  specific 
moment  of  time.  For  instance,  the  leading  case  is  the  anthrax 
case.  The  medical  evidence  is  that  you  get  anthrax  from  a 
bacillus  which  comes  at  a  specific  time.  That  is  covered.  On 
the  other  hand,  in  a  case  in  England,  which  was  perhaps  lead 
poisoning  or  something  of  that  kind,  they  said  it  was  not  covered, 
because  it  gradually  came  on,  and  there  was  not  any  specified 
moment  of  time  when  the  accident, — they  had  the  word  ''acci- 
dent,"— ^when  the  accident  produced  it.  So  that,  if  you  can  guess 
what  the  Massachusetts  law  will  be,  having  followed  the  decision 
of  the  House  of  Lords,  they  would  probably  follow  the  others  in 
the  Court  of  Appeals.  So  that  in  our  law  now,  unless  we  put 
in  words  of  exemption,  it  would  cover  industrial  diseases  which 
could  be  shown  to  arise  at  a  certain  specific  time.  Now,  if  we 
do  not  want  to  cover  them,  we  shall  have  to  be  very  careful  how 
to  frame  our  act  in  Massachusetts.  If  w^e  do  want  to  cover  them, 
we  need  not  say  anything  about  it. 

The  Chairman:  Conceding  that  would  be  the  rule  of  con- 
struction, isn't  it  a  fact  that  you  are  liable  to  get  a  different  con- 
struction in  some  of  the  other  States,  and  isn't  it  advisable,  if  we 
used  the  words  "personal  injuries"  or  whatever  we  used,  to  de- 
fine that  language?  Your  definition  could  include  what  you 
wanted  it  to  include  in  that  way. 


288 

Mr.  Lowell:  Mr.  Chairman,  personally,  I  hate  definitions, 
and  I  would  like  to  get  along  with  as  few  as  possible  in  the  act. 
It  would  seem  to  me,  if  it  was  possible  to  so  frame  the  act  that  you 
could  put  it  into  the  first  clause,  it  would  better  be  done  that  way 
rather  than  giving  it  a  definition  in  a  separate  definition  clause. 
But  that  is  a  mere  matter  of  detail.  I  think  there  should  be  some- 
thing put  in,  certainly  for  Massachusetts,  to  bring  out  the  propo- 
sition, if  you  don't  want  it  to  cover  industrial  diseases. 

The  Chairman:  I  have  had  some  considerable  doubt  about 
the  proper  expression  to  use  in  my  own  mind.  I  don't  know  how 
you  think  about  it.  Judge  Sanborn,  in  Wisconsin. 

Mr.  Sanborn:  That  is  the  trouble.  We  want  to  exclude 
occupational  diseases. 

The  Chairman:  And  there  is  another  question  which  arises, 
co-ordinate  with  that.  If  you  want  to  exclude  occupational 
diseases  and  do  not  describe  it  as  an  ''accident"  and  get  rid  of  the 
point  that  Mr.  Lowell  has  made,  how  about  providing  that  notice 
be  given  in  a  certain  time  to  the  employer,  or  the  secretary  of  the 
board  of  arbitration,  or  whoever  has  that  duty  to  receive  the 
notice?  Are  you  not  going  to  make  an  elastic  provision  for  notice, 
so  that  in  case  the  bacilli  do  not  ripen  within  the  time  that  the 
notice  has  ordinarily  specified, — ^you  must  have  it  elastic  enough 
to  specify  that.     That  is  one  of  the  things  that  has  bothered  me. 

Mr.  Bailey:  I  do  not  believe  that  you  should  go  any  further 
than  Judge  Sanborn  suggests  at  the  present  time.  Industrial 
diseases  will  come  in  a  few  years  later.  But,  to  start  with,  I 
think  we  ought  to  define  personal  injuries  so  as  not  to  include 
diseases.  They  have  come  very  close.  There  was  a  case  of 
aneurism  in  England.  A  man  had  a  monkey-wrench  in  his  hand, 
and  gave  a  jerk  and  burst  a  blood-vessel.  The  court  held  that 
to  be  a  personal  injury  from  which  he  could  recover;  that  it  was 
not  a  disease,  although  disease  had  something  to  do  with  it. 
Industrial  diseases,  like  lead  poisoning  and  such  things,  should 
come  later.  We  have  got  to  get  the  act  adopted.  If  you  load 
it  down  too  much,  you  will  get  into  trouble. 

Mr.  Lowell:  Mr.  Chairman,  there  is  the  point  that  Mr. 
Bailey  has  raised.  If  you  put  in  a  phrase,  any  ordinary  phrase, 
allowing  recovery  for  personal  injury,  the  court  will  probably 
hold,  as  they  did  in  England,  that  it  makes  no  difference  what 
condition  a  man  is  in  at  the  time  he  received  the  injury,  the 
employer  is  liable.  You  will  remember  the  case  where  some- 
body on  an  Atlantic  liner  got  together  a  crew  of  stokers.     In  the 


289 

crew  was  a  fellow  who  was  not  at  all  fitted  for  the  job,  and  was 
emaciated  and  in  a  shocking  physical  condition.  The  first  time 
he  went  into  the  stoke-room  he  got  what  they  call  a  heat  stroke, 
and  died,  and  the  court  held  that  was  an  injury  arising  out  of 
accident,  and  that  the  employer  was  liable.  Now  there  is  the 
situation.  Do  you  want  to  cover  that?  It  really  is  not  an  acci- 
dent in  the  course  of  business.  That  is  the  whole  thing,  as  I 
imderstand  it.  The  theory  of  it  is  to  put  on  the  employer  the 
results,  the  natural  and  necessary  results,  of  his  business.  Now 
that  is  not.  Because,  if  that  man  had  been  sound  physically, 
he  never  would  have  died,  so  that,  when  you  are  drafting  your 
act,  you  want  to  consider.  Shall  we  cover  the  case  of  a  man  who 
receives  an  injury  which  a  man  in  sound  physical  condition  would 
not  have  sustained?  There  are  a  great  many  of  those  C£ises  in 
England.  There  is  the  case  of  a  man  who  ruptured  himself  by 
the  quick  turn  of  a  valve.  It  was  in  evidence  there  that  a  man 
in  any  kind  of  physical  shape  would  not  have  been  ruptured. 
The  court  held  it  was  an  accident  arising  out  of  emplo5anent, 
and  the  employer  was  liable. 

Mr.  Bailey:  I  agree  with  Mr.  Lowell.  You  should  use  some 
wording  in  describing  personal  injuries  that  does  not  include 
industrial  diseases  or  whatever  the  language  is  you  use. 

Mr.  Lowell:  What  do  you  say  about  the  other  point  of  the 
accident  to  the  fellow  in  bad  shape?  Would  you  cover  it  or  not? 
I  don't  want  to  get  into  too  many  refinements,  if  you  can  help 
it.  That  is  my  feeling  about  it.  You  must  sacrifice  something 
for  simplicity.  That  depends  a  good  deal  on  the  question  of 
policy.  When  you  get  your  law  in  operation  on  these  questions, 
and  when  they  require  the  person  to  take  a  physical  examination 
to  see  if  he  is  in  bad  condition  and  anything  of  that  sort,  it 
may  come  up  to  us  in  a  very  serious  way. 

The  Chairman:  It  will  come  right  up. 

Mr.  Schutz  :  I  simply  throw  out  the  suggestion  that  the  codi- 
fication committee  consider  whether  it  is  not  possible,  at  least 
so  far  as  possible,  to  exclude  the  word  "liabiUty."  If  we  can  say, 
where  personal  injury  happens,  the  employee  be  entitled  to  re- 
ceive compensation,  that  the  employee  be  entitled  to  receive  it 
from  the  employer  rather  than  that  the  employer  be  liable  to 
pay.     The  whole  matter  is  educational  at  this  stage. 

The  Chairman:  I  think  we  agree  to  cut  out  the  word  "lia- 
bility.'^ 

Mr.  Sanborn:   Yes. 


290 

The  Chairman:  And  then  you  have  this  question,  when  it 
comes  to  compensation,  Are  you  going  to  compensate  a  man, 
technically  speaking,  when  he  hurts  himself  by  his  own  wrong? 

Mr.  Schutz:  I  do  not  think  the  word  ''compensation"  has  the 
meaning  in  the  pubUc  mind  that  the  word  "liability"  has. 

The  Chairman:  That  is  my  own  opinion. 

Mr.  Lowell:  This  leads  me  to  a  thing  that  is  rather  funda- 
mental. I  got  at  it  through  a  talk  with  Professor  Williston, 
and  that  was  the  question  of  bankruptcy,  which  I  will  only  touch 
on  for  a  moment.  He  says  that  the  only  way  to  get  a  good  act 
under  the  United  States  law  of  bankruptcy  is  to  so  frame  the 
bill,  so  frame  the  whole  thing,  that  the  compensation  shall  come 
imder  it  as  a  debt  of  a  State.  That  is  to  say,  the  thing  in  my 
mind  stands  in  this  way:  As  I  understand  the  Supreme  Court 
of  the  United  States  decisions,  they  are  pretty  liberal  on  the  ques- 
tion of  imposing  liability  on  a  man,  but  very  much  the  other  way 
on  the  question  of  interfering  with  contracts.  Now,  if  you  get 
your  law  in  any  kind  of  a  form  where  it  looks  as  if  it  were  a  con- 
tract between  two  parties,  why,  they  are  going  to  say  in  the  Su- 
preme Court  at  Washington,  "Why,  you  cannot  interfere  with 
contract  that  way."  But,  if  you  put  it  more  on  the  ground  of 
liability,  then  they  are  more  likely  to  uphold  the  law. 

Mr.  Bailey:  Do  you  think  the  theory  of  liability  will  help 
that,  or  tjhe  theory  of  simply  imposing  a  duty? 

Mr.  Lowell:  I  suppose  liability  is  a  breach  of  duty.  So 
that  is  the  same  thing. 

Mr.  Bailey:  It  is  a  question  of  language  that  you  are  talking 
about. 

The  Chairman:  Yes. 

Mr.  Bailey:  I  say  liable  to  pay  compensation  in  some 
cases,  and  shall  be  entitled  to  receive  compensation,  and  entitled 
to  receive  weekly  payments. 

Mr.  Schutz:  I  have  no  objection  to  "entitled  to  receive." 
I  have  objections  to  "liable  to  pay."  I  think  we  should  keep  the 
distinctions  between  employer's  liability  and  workman's  com- 
pensation, which  is  not  a  definite  thing  in  the  public  mind. 

Mr.  Lowell:  The  trouble  with  that  is  that,  if  you  get  a  single 
bill  covering  the  whole  thing,  you  have  got  both  together. 

Mr.  Bailey:  And  you  may  distinguish  in  that  case  by  calling 
what  you  get  at  common  law  or  under  the  Employers'  Liability 
Act  damages.     That  is  what  the  courts  use  now.     The  workman 


291 

sues  for  damages  in  an  action  of  tort.  Under  the  Compensation 
Act  call  what  the  workman  gets  compensation.  That  seems  to 
me  to  be  clear. 

The  Chairman:  I  used  the  expression  ''that  employers  shall 
be  liable  to  pay  compensation,"  but  I  am  not  sure  that  the  words 
''liable  to"  should  not  be  stricken  out,  and  simply  say  "the 
employer  shall  pay  compensation,"  or  "shall  pay"  and  leave 
out  the  word  "compensation."  But,  probably,  "compensation" 
ought  to  be  there. 

Mr.  Bailey:  That  wants  to  be  there. 

Mr.  Schutz:  That  is  simply  a  suggestion  that  the  committee 
may  bear  in  mind.  I  think  it  will  be  helpful  if  that  can  be  dealt 
with  in  the  new  phraseology. 

The  Chairman  :  I  have  asked  these  gentlemen,  Judge  Sanborn, 
about  various  matters  in  drafting  this  bill.  If  there  are  any 
questions  that  trouble  you  on  these  sections,  I  wish  you  would 
have  them  brought  out.     I  wish  you  would  ask  about  them. 

Mr.  Sanborn:  All  right.  I  was  not  here  when  you  fixed 
your  compensation.  Did  you  take  into  consideration  the  means 
of  arriving  at  a  limit? 

Mr.  Lowell:  I  think  not. 

The  Chairman:  I  had  that  in  mind  and  I  mentioned  it,  but 
the  majority  voted  against  it. 

Mr.  Lowell:  I  did  not  think  it  was  concluded. 

The  Chairman:  I  do  not  think  it  is.  I  suggested  it  in  argu- 
ment, but  nobody  thought  enough  of  it  to  make  a  motion. 

Mr.  Sanborn:  The  International  Harvester  Company  and 
the  Rock  Island  Road  make  a  separate  class  of  cases  and  fix  com- 
pensation. 

Judge  Hollo  way  :  And  they  do  in  Montana,  in  the  gold  mines. 

Mr.  Lowell:  May  I  suggest  there,  Judge  Sanborn,  that  in 
the  case  of  losing  an  arm,  if  you  say  it  is  twelve  hundred  dollars  or 
any  specific  amount,  you  are  going  to  get  into  trouble,  as  it  seems 
to  me,  as  in  a  case  like  this:  There  was  a  man  who  was  hurt.  I 
have  forgotten  what  employment  he  was  in.  He  was  a  common 
laborer  in  a  factory, — not  a  common  laborer,  but  a  laborer  in  a 
factory, — and  received,  we  will  say,  twelve  dollars  a  week.  He 
lost  his  left  hand.  He  was  a  bright  man,  and  the  employer  wanted 
to  help  him.  He  got  him  into  the  clerical  department,  and  within 
six  months  he  was  earning  fourteen  dollars  a  week.  Now  the 
practical  situation  is  this:    if  you  give  a  man  who  afterwards  is 


292 

able  to  earn  a  higher  wage  or  the  same  wage  in  a  different  em- 
ployment the  same  amount  which  you  give  to  the  laborer  who  is 
able  to  earn  but  a  very  few  dollars,  wouldn't  it  be  unfair,  wouldn't 
it  be  unfair  to  the  laborer,  to  give  the  other  man  just  as  much  as 
he  gets,  although  the  other  man  is  really  better  off  in  this  world's 
goods  than  he  was  before?  That  is  the  trouble  which  we  have 
found  in  discussing  this  thing  in  Massachusetts  about  any  speci- 
fied amount  for  a  specified  injury.  For  instance,  a  violinist 
who  loses  his  right  hand  is  gone.  That  is  the  end  of  him.  But, 
if  I  lose  my  right  hand,  it  would  not  interfere  with  my  business. 

Mr.  Browne:  Was  that  covered  in  the  New  York  law  by  the 
provision  which  measured  up  the  difference  between  what  he 
earned  in  his  former  occupation  and  what  he  earned  in  his  maimed 
condition? 

Mr.  Sanborn:  The  general  compensation  law  does  that. 

Mr.  Lowell:  But  won't  you  override  that  if  you  get  in  speci- 
fied injuries? 

Mr.  BpowNE:  I  understand  that.  I  am  with  you  on  that 
suggestion. 

Mr.  Lowell:  That  is  really  my  trouble  in  framing  this  act. 
We  all  say:  "Let  us  have  this  thing  specified,  so  that  you  won't 
have  to  go  to  the  court.  If  a  man  loses  three  fingers,  he  shall 
receive  five  hundred  dollars;  if  he  loses  four,  it  is  worth  six  hun- 
dred dollars;  if  he  loses  an  arm,  it  is  worth  twelve  hundred  dollars" ; 
but,  in  bringing  it  down  to  actual  cases,  you  come  to  a  situation 
like  this,  where  sometimes  you  are  giving  a  man  a  larger  amount 
of  money  than  you  are  giving  to  his  neighbor,  where  he  really  is 
not  vitally  injured  at  all.  That  is  the  great  difficulty.  I  believe, 
in  Belgium  or  some  other  country,  they  have  got  it  reduced 
down  to  a  system  whereby  you  know  right  off  what  there  is  to 
pay,  which  is  very  pretty  from  the  point  of  view  of  the  cer- 
tainty of  the  act,  but  you  get  cases  of  great  injustice  under  it. 

Mr.  Schutz:  All  of  the  foreign  acts,  as  I  view  them,  are 
practically  less  expensive  than  our  present  system,  are  they  not, 
Mr.  Lowell? 

Mr.  Lowell:  Mr.  Mercer  knows  more  about  that. 

Mr.  Schutz:  They  are  all  limited  to  a  man  who  earns  not 
over  seven  hundred  dollars  a  year,  which  is  not  the  limit  of  a  man's 
earnings  at  the  present  time. 

Mr.  Browne  :  You  limited  that  by  the  action. 

Mr.  Schutz:  If  I  earned  three  thousand  dollars,  I  would  be 
entitled  to  get  a  percentage  of  my  earnings. 


293 

The  Chairman:  In  order  to  bring  out  suggestions,  I  will 
say  that  I  have  spent  a  good  many  sleepless  nights  over  the 
question,  and  I  approached  the  question  from  an  entirely  dif- 
ferent theory  from  what  has  been  approved  here.  I  do  not 
mean  to  say  entirely  different,  but  along  a  little  different  line. 
I  am  satisfied  that  we  would  have  serious  kind  of  difficulty  along 
the  line  suggested  by  Mr.  Lowell,  if  we  paid  five  hundred  dollars 
for  one  finger  or  two  fingers  and  seven  hundred  and  fifty  dol- 
lars for  another  accident.  I  think  also  that,  if  we  leave  the 
question  open  as  to  how  long  the  period  of  disability  or  partial 
disability  shall  continue,  we  will  have  to  delay  for  a  time 
where  it  strikes  a  man  who  has  lost  an  eye  or  an  arm  or  a  leg, 
and  all  that  kind  of  thing,  on  account  of  the  question  of  when  he 
is  going  to  be  able  to  go  back  to  work  or  he  is  wholly  disquali- 
fied,— we  will  have  serious  trouble  along  that  line.  Therefore, 
it  seems  to  me  better  to  allow  the  compensation  to  be  based  on 
the  wage  scale,  or  the  present  basis  of  the  earning  capacity,  in 
so  far  as  it  keeps  the  man  out  of  that  particular  employment. 
If  his  body  is  maimed  or  disfigured,  or  he  receives  injuries  that 
make  a  nervous  condition  that  absolutely  incapacitates  him  for 
anything,  say  there  is  disfigurement  or  actual  pain,  or  pain  to 
a  great  extent,  there  would  be  an  additional  percentage  under 
those  circumstances.  Then  that  ordinary  liability  would  stop 
when  the  man  gets  well  and  gets  out  of  the  hospital  and  no  more 
can  be  done,  let  that  limit  stop.  Now  take  this  situation:  Have 
a  man  working  at  some  trade,  and  he  loses  both  hands.  At  the 
end  of  a  few  weeks  he  is  physically  well,  or  a  few  months  at  the 
outside,  except  that  he  has  simply  lost  those  members,  and  he 
cannot  use  them.  Now,  if  you  grant  compensation  to  continue 
during  the  period  he  is  in  the  hospital  on  the  basis  that  you  do 
of  injuries,  whether  he  gets  well  or  not,  you  have  a  fair  basis  from 
that  standpoint.  If  you  give  him  additional  compensation  for 
the  loss  of  those  limbs  and  arrange  for  the  period  of  suffering, 
and  give  him  some  compensation  for  the  disfigurement,  I  am 
frank  to  say  that  meets  my  own  mind  better  than  anything 
else  that  I  can  think  of.  I  will  be  glad  to  have  any  suggestions 
about  that. 

Mr.  Bailey:  The  English  act,  as  I  recall  it,  does  not  give  the 
employer  any  credit  where  a  man  is  able  to  go  to  work  at  some 
other  employment,  say  as  a  book-keeper  or  something  else,  as 
Mr.  Lowell  suggested  the  other  night,  with  the  same  employer 


294 

or  some  other  employer.  That  does  not  reduce  the  compensa- 
tion. But  to  my  mind  that  is  not  quite  right,  it  is  not  quite 
fair.  If  he  can  work  for  the  same  emplo3^er  in  the  counting- 
room,  or  the  employer  can  help  him  to  employment  of  a  dif- 
ferent sort  where  he  will  earn  as  much  as  he  did  before,  then 
the  damages  he  should  receive  should  be  reduced,  and  that  is 
a  fair  way  to  treat  it.  I  have  nothing  to  say  about  how  the 
problem  of  the  man  who  has  lost  both  hands  should  be  handled. 
I  an  afraid  you  will  get  into  trouble  if  you  treat  that  any  dif- 
ferent from  anything  else.     I  am  afraid  you  will. 

The  Chairman:  I  have  not  concluded  that  in  my  own  mind. 
That  is  what  the  law  should  cover.     That  is  my  suggestion. 

Mr.  Bailey:  I  want  to  say  a  few  words  about  jury  trial  and 
about  the  scheme  I  have  put  into  this  bill  here  for  a  tribunal 
that  should  be  erected  to  carry  this  thing  out.  I  think  the  com- 
mittee is  entirely  agreed  that  you  want  speed  and  you  want 
unanimity,  and  you  want  impartiality  and  you  want  reasonable 
capability.  I  have  been  a  little  troubled  with  the  suggestion 
from  Wisconsin  and  from  Mr.  Lowell,  that  this  arbitration 
committee,  with  one  member  permanent  and  the  other  members 
perhaps  not  so  permanent.  That  might  be  subject  to  objection 
when  you  have  got  a  continuing  state  of  things.  You  have  got 
a  thing  that  is  going  to  last  a  good  while  and  will  need  readjust- 
ment from  time  to  time,  and  it  needs  an  official,  whatever  you 
may  call  him,  something  like  a  referee  in  bankruptcy,  who  is 
there  as  long  as  the  case  lasts,  who  knows  what  has  happened 
already,  and  who  can  decide  the  different  points  as  they  come  up, 
the  same  as  a  judge  sitting  in  a  court  of  equity  does,  or  a  referee 
in  bankruptcy  does.  If  you  are  going  to  have  an  arbitration 
committee,  you  must  make  the  two  men  selected  in  the  beginning 
by  the  parties, — ^you  must  make  them  permanent,  to  deal  with 
the  thing  as  it  comes  up  later  on. 

Mr.  Lowell:  May  I  interrupt  by  saying  that,  after  the  first 
liabifity  has  been  settled  under  our  provision  here  for  a  State 
board, — in  the  first  place,  I  don't  know  if  Judge  Sanborn  is  famil- 
iar with  our  proposed  idea,  and  I  do  not  think  you  can  visit  the 
sins  of  Massachusetts  on  Wisconsin,  because  I  don't  think  they 
agreed  to  it?  Our  idea  in  each  case  is  to  have  two  temporary 
arbitrators  with  a  chairman  who  shall  be  a  member  of  the  per- 
manent State  board,  and  they  are  to  determine  the  thing  in  the 
first  place.     Our  provision  says  that,  if  there  is  a  question  comes 


295 

up  for  reducing  the  amount  of  the  weekly  payment,  that  shall 
go  to  the  State  board. 

The  Chairman  :  That  is  the  recommendation  made  yesterday, 
but  I  believed  Judge  Sanborn  was  here  at  the  time  that  that 
came  up. 

Mr.  Sanborn:  No. 

Mr.  Bailey:  That  to  my  mind  is  a  good  feature,  and  it  also 
is  to  my  mind  a  good  feature  that  they  had  in  Wisconsin,  they 
called  them  ''examiners," — they  had  examiners  who  could  be 
sent  about.  I  don't  care  what  you  call  them,  but  you  must 
have  quite  a  few  of  those  people  in  a  place  where  there  are  large 
industries,  and  they  must  be  of  a  flexible  number,  sufficient  to  do 
all  the  business.  But,  whatever  you  call  them,  provide  for  the 
permanent  idea,  and  don't  get  them  too  expensive  or  too  cumber- 
some. I  would  almost  be  ready  to  think  that  one  commissioner, 
if  you  call  him  a  commissioner,  or  one  referee,  if  you  call  him  a 
referee,  would  do  if  you  give  him  large  powers  and  make  him  im- 
partial, and  let  him  keep  records  of  what  he  has  done.  By  that 
I  simply  mean  enough  to  know  what  he  has  done. 

The  Chairman:  I  want  to  make  a  suggestion  in  reference  to 
jury  trials,  and  I  wish  you  would  give  your  opinions  on  it,  if  you 
have  any.  I  found  in  Norway,  when  I  was  over  there,  that  the 
director  of  the  State  Department  of  Insurance  in  Norway  is  a 
civil  engineer.  He  had  charge  of  building  the  biggest  railroad 
down  here  on  the  canal  between  us  and  South  America  at  one 
time.  He  was  a  man  of  experience.  They  have  a  board  of 
appeals  there,  consisting  of  two  doctors,  two  technical  or  scientific 
men,  who  are  engineers,  I  think,  at  least  one  scientific  man,  and 
then  they  have  a  lawyer  and,  I  believe,  two  business  men  and 
two  labor  representatives  to  sit  with  them  on  their  board  of  ap- 
peals. Now  it  occurred  to  me,  since  I  have  said  anything  on  this 
subject  in  writing,  that  it  might  be  possible  to  have  a  permanent 
board  of  arbitrators,  and  let  them  exercise  the  right  of  sending  an 
expert,  a  doctor  or  a  machinist,  or  any  other  experts  they  want, 
to  examine  any  place  they  need,  and  for  them  to  come  back  and 
give  their  evidence  before  the  parties. 

Mr.  Sanborn:  I  would  rather  have  them  employed  than 
members  of  the  commission. 

The  Chairman:  It  struck  me  that  it  worked  very  well  in 
Norway. 

Mr.  Bailey:  Now  a  word  on  the  right  of  jury  trial,  which  of 


296 

course  is  important.  I  want  the  committee  to  look  at  these 
Massachusetts  cases  which  Professor  WilHston  has  cited,  and  the 
few  lines  which  he  has  put  in  his  opinion.  Professor  Williston 
is  always  very  concise  and  does  not  waste  any  words,  and  he  has 
stated  the  point  very  concisely. 

If  the  matter  is  on  the  equity  side  of  the  court,  you  have  not 
got  to  have  any  jury,  either  for  the  plaintiff  or  for  the  defendant. 
I  am  using  those  words  for  briefness.  The  ordinary  rule  is  that, 
if  a  remedy  is  offered  to  a  party  plaintiff  and  he  sees  fit  to  come 
under  it,  he  takes  it  as  it  is,  and  his  mouth  is  shut  to  say  that  he 
requests  a  jury.  And  the  court  in  Massachusetts,  after  long 
and  exhaustive  opinion  and  a  review  of  all  the  cases  in  Massa- 
chusetts and  outside  of  Massachusetts,  found  that  equitable 
relief  at  the  time  that  the  constitution  was  adopted  was  not 
coupled  with  a  right  to  a  jury,  and  that  there  was  not  any  right 
of  jury  given,  any  absolute  right  of  jury  which  a  man  was  en- 
titled to.  And  we  can  go  outside  of  the  cases  which  are  cited 
there,  and  in  the  later  Massachusetts  cases  which  followed  that, 
and  find  a  great  many  illustrations  of  where  the  Legislature  has 
created  by  statute  equitable  rights,  and  put  the  remedy  into  an 
equity  court. 

I  think  that  is  worth  talking  about.  I  hope  that  will  be  con- 
sidered, because  I  do  think  it  is  important,  if  possible,  to  elim- 
inate any  jury  trial  from  this  for  anybody. 

Mr.  Lowell:  Let  me  ask  you,  Mr.  Bailey,  if  I  may:  let 
me  state  what  I  understand  your  position  to  be,  in  order  that  I 
may  see  if  I  properly  understand  you,  because  it  is  a  matter  which 
seems  to  me  to  be  of  the  utmost  importance,  and,  if  we  can  do  it, 
I  think  we  have  got  a  scheme  which  is  going  to  be  a  mighty  good 
scheme.  I  understand  you  to  say  that  this  is  not  depriving  a 
defendant  of  property  without  due  process  of  law,  because  you 
are  giving  him  a  regular  legal  right  on  the  equity  side,  and  there 
is  nothing  in  that  part  of  the  constitution  which  requires  a  jury 
trial.  Now  I  understand  you  to  say  that  you  are  not  depriving 
the  defendant  of  his  trial  by  jury,  because  you  are  giving  him  the 
kind  of  law  which  is  necessary  for  the  law  which  you  propose, — 
a  kind  of  law  which  from  the  adoption  of  the  constitution,  which 
is  the  time  it  goes  back  to,  was  not  tried  by  a  common  law  court. 

Mr.  Bailey:  That  is  stating  it  very  briefly. 

The  Chairman:  Now  I  want  to  ask  a  question.     Have  you 
considered  this  proposition:    Conceding  that  as  a  right  which 


297 

was  not  a  right  of  trial  by  jury  at  the  time  of  the  adoption  of  the 
constitution,  isn't  there  just  as  much  right  now  for  saying  that 
this  right  did  not  exist  at  all  at  that  time?  We  have  no  right 
that  does  not  come  under  the  constitution  on  either  side  of  the 
court,  and  by  it.  And  it  is  wrong  to  get  into  this  position  where 
the  Supreme  Court  of  Massachusetts  and  the  Supreme  Court  of 
the  United  States,  and  the  Supreme  Courts  of  the  other  States 
will  say,  as  far  as  the  decisions  are  invoked  in  the  adminis- 
tration of  it,  though  it  might  come  after  the  judgment,  or  in  the 
case  of  minors,  or  something  of  that  sort,  that  a  court  of  equity 
might  have  powers  in  order  to  carry  out  the  trust  for  the  State 
and  for  the  benefit  of  its  citizens  under  those  circumstances. 
But  won't  you  meet  with  the  rule  that  those  courts  substantially 
all  adopt, — that  it  doesn't  make  any  difference  what  you  call  the 
remedy,  it  doesn't  make  any  difference  in  which  court  you  intend 
to  place  it,  if  the  substance  of  the  right  is  an  equitable  right,  the 
court  will  so  hold;  and,  if  the  substance  of  it  is  a  law  right,  the 
court  will  so  hold,  and  put  it  in  the  place  where  it  belongs  ac- 
cordingly.    That  is  the  rule  in  the  Federal  courts. 

Mr.  Bailey  :  We  all  agree  to  that,  but  as  to  what  is  equitable, 
and  what  belongs  there,  opinion  is  very  wide.  In  Massachusetts 
you  have  not  got  to  have  the  element  of  trust.  You  haven't 
got  that.  But  I  won't  undertake  to  define.  The  equity  court 
is  given  power  by  the  Legislature  to  act  and  give  relief  where 
the  law  court  is  short.  For  instance,  a  man  carries  in  his  pocket 
habitually  five  hundred  dollars  in  money,  and  he  is  owing  people 
and  is  bragging  about  it.  You  cannot  trouble  him  because  you 
cannot  attach.  You  commence  the  poor  debtor's  process  of  law, 
and  he  won't  have  it  in  his  pocket  then.  The  Legislature  of 
Massachusetts  has  said  you  may  bring  your  suit  or  your  book 
account,  or  your  promissory  note  or  whatever  the  claim  is,  if 
it  is  a  legal  claim,  and  you  may  get  out  an  injunction  upon  him 
from  parting  with  that  money.  You  may  get  a  mandatory  in- 
junction, compelling  him  to  turn  it  over  to  the  clerk  of  the 
court.  The  law  court  simply  gives  judgment,  execution,  and 
attachment.  So  I  say  that,  if  for  any  reason  the  common  law 
remedies  are  insufficient,  the  Legislature  may  give  a  remedy  on 
the  equity  side  of  the  court,  and,  if  it  is  put  there,  then  the  de- 
fendant loses  his  absolute  right  to  trial  by  jury  on  the  book 
account  or  on  the  promissory  note. 

The  English  law  requires  you  to  get  a  judgment,  which  gives 


298 

you  a  right  to  trial  by  jury.  Equitable  trustee  process  has  been 
going  on  for  thirty  or  forty  years  in  Massachusetts,  and,  as 
Mr.  Browne  says,  nobody  has  raised  the  constitutional  question. 

Mr.  Browne:  It  rests  on  one  of  the  great  elements,  of  equity 
jurisprudence  all  the  way  through. 

The  Chairman  :  Is  there  any  other  point? 

Mr.  Bailey:  I  believe  the  principle  is  broad  enough  to  cover 
that,  if  the  relief  you  are  going  to  give  is  more  than  you  can  give 
by  judgment  and  execution,  you  are  not  acting  arbitrarily,  when 
you  give  the  equity  court  power  to  deal  with  it  and  send  the 
parties  there  for  relief.  Then  they  are  properly  there,  the  same 
as  they  are  properly  there  in  bankruptcy  cases  and  referee  cases. 
And,  if  I  am  right  about  the  Massachusetts  cases,  they  are  cut 
off  from  jury  trials.  And  I  am  pretty  clear  that  those  cases  do 
take  away  the  absolute  right  of  trial  by  jury  in  all  equity  cases. 

The  Chairman:  I  want  to  add  that  early  in  the  stage  of 
investigation  of  this  matter  I  saw  that  point.  I  did  not  go  into 
it  very  deeply,  because  the  very  answers  to  the  questions  I  have 
indicated  here  led  me  to  think  that  possibly  there  was  not  any- 
thing to  it. 

Mr.  Bailey:  That  may  be  the  final  outcome. 

Judge  Hollo  way:  The  discussion  by  Mr.  Bailey  has  repeat- 
edly raised  in  my  mind  what  I  consider  the  serious  side  of  this 
matter.  It  is  not  what  you  call  the  thing  that  determines  its 
character,  by  any  means.  You  can  say  it  is  equitable,  but,  if 
the  courts  finally  determine  it  is  not,  of  course  you  cannot  de- 
prive a  man  of  his  jury  trial.  It  has  to  be  of  such  a  character 
that  the  courts  are  compelled  to  say  that  it  is  clearly  of  equi- 
table cognizance,  otherwise  the  general  rule  and  the  guaranty 
to  a  man  of  his  right  of  trial  by  jury  must  be  held  good.  In  our 
State  we  have  repeatedly  held  that  in  a  matter  of  strictly  equi- 
table cognizance  neither  party  is  entitled  to  trial  by  jury.  For 
instance,  in  contest  cases,  cases  arising  out  of  the  settlement  of 
public  lands  for  agriculture  and  other  purposes.  For  instance, 
two  men  go  to  work  and  lay  claim  upon  some  piece  of  public 
land  for  mining  claims,  and  they  overlap.  A,  over  here,  applies 
for  a  patent  to  his  entire  claim,  and  B  goes  into  court  and  op- 
poses and  adverses  him  on  the  ground  that  he  is  overlapping 
and  seeking  to  include  part  of  his  claim.  Now,  under  the  Fed- 
eral statute,  B  goes  into  the  Land  Office  and  files  his  petition 
there,  and,  if  it  is  allowed,  in  thirty  days  he  must  go  into  a  court 


299 

of  competent  jurisdiction  and  bring  an  action  to  determine  his 
rights  to  the  ground  in  dispute.  We  have  repeatedly  held  that 
neither  party  is  entitled  to  a  jury  trial,  although  it  determines 
the  rights  in  the  matter,  the  rights  to  the  patent  to  the  land  in 
dispute.  The  courts  hold  that  it  is  so  far  in  equitable  cognizance 
that  it  should  be  treated  as  a  case  in  equity,  although  really  it 
arises  under  a  judgment. 

Mr.  Browne  :  And  the  court  has  affirmed  that. 

Mr.  Lowell:  What  is  there  equitable  about  it? 

Mr.  Hollo  way:  It  does  not  try  the  title,  it  determines  who 
is  entitled  to  the  patent.  It  leaves  it  open  as  a  public  convey- 
ance. We  have  said  that  the  form  of  action  is  entirely  immate- 
rial where  it  is  brought  to  quiet  title,  and,  under  the  statutes  that 
we  have,  this  rule  is  intended  to  carry  out  the  idea  of  the  Federal 
statutes.  It  doesn't  make  any  difference  whether  you  bring  a 
statutory  action  in  Montana  or  whether  you  bring  an  ordinary 
action  to  acquire  title.  The  form  of  action  is  immaterial.  The 
purpose  to  be  served  is  to  determine  which  of  the  two  parties  is 
entitled  to  the  land  in  controversy. 

Mr.  Browne:  Let  me  suggest  this:  that  perhaps  you  can 
simulate  it  to  an  accounting  in  equity,  because  here  the  facts 
are  ascertained  as  to  the  amount  due,  and  the  money  award  is 
made  accordingly. 

Mr.  Bailey:  It  is  something  you  cannot  get  any  proper  relief 
from  except  by  decree. 

The  Chairman:  Isn't  it  a  plain  legal  proposition?  Unless 
you  get  to  a  decision  of  the  amount,  until  you  get  a  judgment, 
have  you  got  any  right  for  any  equitable  interference  on  the  part 
of  anybody? 

Mr.  Holloway:  What  judgment  would  you  get? 

The  Chairman  :  You  would  get  the  award. 

Mr.  Bailey:  That  is  not  a  judgment.  Professor  WiUiston 
suggests  this :  that,  if  equity,  bona  fide,  has  a  right  to  take  hold 
of  any  part  of  a  situation,  then  equity  will  be  able  to  do  justice 
and  deal  with  all  kinds  of  legal  matters  which  are  bona  fide  prop- 
erly connected  with  it. 

Mr.  Browne:  The  original  jurisdiction  includes  everything, 
including  the  amount  of  damages. 

The  Chairman:  There  must  be  other  grounds  than  the  mere 
awarding  of  damages  for  money.  I  have  been  very  much  bene- 
fited by  the  discussion  this  afternoon,  gentlemen.  It  has  helped 
me,  and  I  thank  you. 


300 

Mr.  Sanborn  :  I  want  to  ask  one  little  detail  on  the  compensa- 
tion you  have  got  there,  three  hundred  weeks,  or  about  six  years. 
You  have  a  provision  in  there,  of  course,  that  the  arbitrators 
may  order  a  lump  sum.  What  is  your  idea?  There  is  a  strong 
tendency  to  order  the  lump  sum,  so  that  it  can  be  put  out  at  in- 
terest, so  it  would  be  a  Uttle  more.  Should  not  that  be  equal- 
ized? 

The  Chairman:  I  think  it  should  be,  personally.  I  don't 
know  how  others  feel. 

Mr.  Bailey:  They  generally  discount  it,  at  rather  a  low  per- 
centage in  England.  I  forget  what  it  is  in  New  York,  but  it  is 
three  and  one-half  per  cent,  in  England,  I  think.     I  am  not  sure. 

Mr.  Lowell  :  That  would  differ  in  different  States. 

Mr.  Bailey  :  Of  course,  it  would  vary. 

The  Chairman:  If  you  are  going  to  have  that  provision  put 
so  low,  it  would  not  be  any  inducement  on  the  part  of  the  people 
to  pay  it;  and  won't  you  practically  defeat  the  object  of  having 
that  clause  in? 

Mr.  Lowell:  Massachusetts  would  like  to  defeat  it.  They 
don't  believe  in  the  lump  sum. 

The  Chairman:  But  how  would  you  do  it?  Would  you  com- 
pute it  back  and  carry  it  on  year  after  year,  or  would  you  make 
it  the  largest  sum,  counting  the  legal  rate  of  interest? 

Mr.  Sanborn:  I  would  be  in  favor  of  putting  it  in  the  other 
way. 

Mr.  Schutz:  I  want  to  thank  you,  gentlemen,  all  for  your 
kind  courtesy  in  allowing  me  to  participate  in  this  discussion. 

Mr.  Lowell:  We  thank  you  for  having  come  here. 

There  is  a  minor  matter  which  Mr.  Bailey  suggested,  and 
that  was  this,  which  is  incorporated  in  the  second  section  of  this 
act  here.  The  English  law  has  the  phrase  that  ''an  employer 
shall  not  be  liable  to  pay  compensation  under  this  act  for  any 
injury  which  does  not  incapacitate  the  employee  for  a  period  of 
at  least  two  weeks  from  earning  full  wages  at  the  occupation 
at  which  he  was  employed."  Now  that  has  brought  in  tech- 
nicality. Although  the  man  can  earn  as  much  at  some  other 
occupation,  he  has  the  right  to  recovery.  They  get  around  it 
by  some  complicated  rule  over  there.  Now  I  have  a  sugges- 
tion in  this,  that  when  you  get  to  the  word  ''wages"  you  stop, 
so  that  it  shall  read,  "An  employer  shall  not  be  liable  to  pay 
compensation  under  this  act  for  any  injury  which  does  not  inca- 


301 
pacitate  the  employee  for  at  least  two  weeks  from  earning  full 


The  Chairman:  I  think  that  brings  up  a  question  that  might 
be  a  question  of  polic}^  of  considerable  importance,  if  I  under- 
stand the  proposition.  I  know  that  there  is  an  idea  that  a  man 
who  is  injured  in  an  occupation  so  that  he  cannot  work  any  longer 
at  that  occupation,  and  goes  out  and  gets  into  another  occupa- 
tion in  which  he  does  equally  as  well,  or  perhaps  better,  he 
is  not  entitled  to  any  compensation.  Personally,  I  think  I  had 
in  mind  that  perhaps  that  theory  was  wrong,  because  it  has  the 
tendency  to  prevent  a  man  from  development;  and  that,  if  that 
man  has  ingenuity  enough  to  change  his  occupation,  or  to  do 
something  else  in  which  he  may  exercise  that  ingenuity  in  his 
original  emplo3anent,  or  makes  a  change  which  increases  his 
value  to  himself,  it  does  not  seem  to  me  quite  fair  to  cut  off  his 
relief  because  he  is  able  to  go  out  after  the  accident  and  do 
better  than  he  was  doing  before  the  accident. 

Mr.  Lowell:  This  is  the  idea  that  I  should  have  against 
that,  Mr.  Chairman:  I  think  we  have  all  got  to  face  the  fact, 
the  hard,  cold  fact,  that  we  cannot,  as  a  matter  of  fact,  get  a  law 
which  is  anywhere  near  as  complete  as  we  would  like  to  have  it. 
In  Massachusetts  we  are  faced — and  in  every  other  State  we  are 
faced — ^with  the  situation  that  you  have  got  to  have  just  as  little 
as  you  possibly  can  have,  and  yet  have  a  decent  law.  Here  is 
the  point,  it  seems  to  me:  you  must  sacrifice  justice  to  expedi- 
ency. 

Mr.  Browne  :  Sacrifice  one  for  the  general  good. 

The  Chairman:  There  is  another  question.  And  that  is  a 
constitutional  question,  and  perhaps  there  is  nothing  to  it.  That 
is,  as  to  equality  for  all  people.  You  take  two  people  working 
side  by  side,  and  they  are  hurt  in  the  same  way,  in  the  same  acci- 
dent, with  exactly  the  same  loss.  They  are  earning  the  same 
wages.  One  of  them  is  able,  after  he  gets  out,  to  get  employment 
where  he  earns  more  money,  and  the  other  one  is  not  able  to  get 
that  employment.  Won't  you  cut  off  something  under  those 
circumstances  from  one  that  you  don't  cut  off  from  the  other? 
Don't  you  have  to  differentiate? 

Mr.  Sanborn:  Isn't  there  a  rule  of  law?  Suppose  they  are 
both  injured,  isn't  that  the  rule,  one  is  able  to  get  out  and  earn 
wages,  and  the  other  one  is  not. 

The  Chairman:  I  don't  think  that  would  apply  to  a  case 


302 

where  the  fellows  were  both  crippled,  and  both  crippled  in  the 
same  way.  It  is  simply  a  question  of  the  one  using  ingenuity 
the  other  one  would  not  use.  I  believe,  if  that  was  brought  up 
in  that  way,  it  would  make  trouble.  I  am  familiar  with  the  rule 
you  are  referring  to. 

Mr.  Sanborn:  That  is  the  rule  in  my  State  on  the  general 
question  of  damages. 

Mr.  Browne:  You  would  want  to  regard  the  accident,  then, 
as  a  blessing  in  disguise. 

The  Chairman:  You  would  want  to  counter-claim.  I  don't 
think  that  rule  applies. 

Mr.  Sanborn  :  In  several  cases  in  our  State  it  has  applied. 

Mr.  Lowell:  Isn't  that  really  the  whole  idea  of  compen- 
sation? That  is,  you  compensate  him  because  he  had  lost  some- 
thing.    If  he  has  not  lost  anything,  what  is  there  to  compensate? 

Mr.  Browne:  You  are  turning  it  from  damages  to  compen- 
sation. And  now,  gentlemen,  before  I  go,  I  must  thank  you  for 
allo^dng  me  to  be  present.  This  discussion  has  been  of  great 
profit  to  me. 

Mr.  Holloway:  It  has  been  of  great  profit  to  me,  too. 

The  Chairman:  We  might  as  well  all  adjourn  now. 

Conference  adjourned. 


303 


APPENDIX  A. 

SUPREME  COURT— SPECIAL  TERM. 

Erie  County. 

September,  1910. 

EARL  IVES,  plaintiff, 

V. 

THE  SOUTH  BUFFALO  RAILWAY  COMPANY,  defendant. 

Demurrer  to  defendant's  answer. 

Thomas  C.  Burke  for  plaintiff. 
Charles  B.  Sears  for  defendant. 

Pound,  J.  The  answer  challenges  the  constitutionality  of  chapter 
674,  Laws  1910,  entitled  "An  act  to  amend  the  Labor  Law  in  relation  to 
workmen's  compensation  in  certain  dangerous  employments."  This 
chapter  applies  only  to  workmen  engaged  in  manual  or  mechanical  labor 
in  certain  employments  declared  by  the  act  to  be  dangerous  by  reason 
of  inherent,  necessary  or  substantially  unavoidable  risks  to  life  or  limb, 
in  which  it  is  deemed  necessary  to  establish  a  new  system  of  compensation 
for  accidents  to  workmen  (Sec.  215) . 

Among  such  employments  is  included:  "6.  The  operation  on  steam 
railroads  or  locomotives,  engines,  trains,  motors  or  cars  propelled  by 
gravity  or  steam,  electricity  or  other  mechanical  power,  or  the  construc- 
tion or  repair  of  steam  railroad  tracks  and  roadbeds  over  which  such 
locomotives,  engines,  trains,  motors  or  cars  are  operated"  (Sec.  215). 

Plaintiff  brings  himseK  squarely  under  the  provisions  of  this  act  by 
alleging  facts  that  establish,  as  admitted  by  the  answer,  that,  while  em- 
ployed by  defendant  as  a  switchman,  he  was  injured  in  the  prosecution 
of  his  work,  without negUgence  on  the  part  of  the  defendant,  and  ''with- 
out serious  or  willful  misconduct"  on  his  part,  but  solely  by  reason  of  a 
necessary  risk  or  danger  of  his  employment,  or  one  inherent  in  the  nature 
thereof  (Sec.  217). 

Prior  to  the  enactment  of  the  statute  above  cited  he  would  have  been 
without  remedy.  By  virtue  of  its  provisions  he  is  entitled  to  recover 
according  to  a  fixed  scale  of  compensation  without  establishing  that  the 
employer  is  at  fault  in  any  way  (Sec.  219a). 

The  plaintiff  demurs  to  the  answer  on  the  groimd  that  it  is  insufficient 
in  law  on  its  face. 


304 

This  act  is  based  on  the  Workmen's  Compensation  Act  of  England, 
and  its  enactment  is  due  to  the  fact  that  the  common  law  affords  no 
available  remedy  for  injuries  occasioned  by  industrial  accidents  not  at- 
tributable to  the  negUgence  of  the  employer. 

Defendant  maintains  that,  under  our  system  of  constitutional  govern- 
ment, the  incorporation  into  our  law  of  the  Enghsh  law  of  workmen's 
compensation  is  beyond  the  powers  of  the  Legislature.  First,  because 
the  act  in  question  deprives  the  defendant  of  liberty  and  property  with- 
out due  process  of  law,  and  denies  it  the  equal  protection  of  the  laws  in 
contravention  of  the  Fourteenth  Amendment  of  the  United  States  Con- 
stitution, and  article  1,  section  6,  of  the  Constitution  of  this  State.  Sec- 
ond, because  it  violates  the  right  of  trial  by  jury  guaranteed  by  article  1, 
section  2,  of  the  Constitution  of  this  State.  Third,  because  it  limits  the 
amount  recoverable  in  actions  to  recover  damages  for  injuries  resulting 
in  death  in  contravention  of  article  1,  section  18,  of  the  Constitution  of 
this  State. 

It  has  well  been  said  by  Mr.  Justice  Brown  of  the  Supreme  Court  of 
the  United  States,  writing  the  opinion  of  the  Court  in  Holden  v.  Hardy 
(169  U.  S.,  366,  at  p.  387),  that  "while  the  cardinal  principles  of  justice 
are  immutable,  the  methods  by  which  justice  is  administered  are  sub- 
ject to  constant  fluctuation,  and  the  Constitution  of  the  United  States, 
which  is  necessarily  and  to  a  large  extent  inflexible  and  exceedingly  diflfi- 
cult  of  amendment  should  not  be  so  construed  as  to  deprive  the  States  of 
the  power  to  so  amend  their  laws  as  to  make  them  conform  to  the  wishes 
of  the  citizens  as  they  may  deem  best  for  the  public  welfare  without 
bringing  them  into  conflict  with  the  supreme  law  of  the  land." 

It  is  well  established  that  statutes  applicable  solely  to  railroads  do  not 
deny  to  railroads  the  equal  protection  of  the  laws.  A  classification  of 
"dangerous  employments"  for  the  purposes  of  the  act  must  be  upheld 
{Missouri  R'y  v.  Mackay,  127  U.  S.  205). 

But  the  act  is  attacked  chiefly  because  it  imposes  liability  without 
fault.  Our  jurisprudence  offers  examples  of  legal  liability  without  fault, 
and  the  deprivation  of  property  without  fault  being  attributable  to  its 
owner.  The  law  of  deodands  was  such  an  example.  The  personifica- 
tion of  the  ship  in  marine  law  is  another.  Other  examples  are  offered  in 
the  common  law  Hability  of  the  husband  for  the  torts  of  the  wife,  or 
liability  of  the  master  for  the  acts  of  his  servant  {The  Osceola,  189  U.  S. 
158;  Chicago,  R.  I.  &  P.  R'y  v.  Zernecke,  183  U.  S.  582). 

In  the  case  last  cited  a  statute  making  railroad  companies  liable  for 
all  damages  inflicted  upon  the  person  of  passengers  while  being  transported 
over  its  road,  except  in  cases  where  the  injury  arose  through  the  criminal 
negligence  of  the  person  injured,  was  upheld,  primarily  on  the  ground  that 
the  railroad  company  being  a  domestic  corporation  of  Nebraska  accepted 
with  its  incorporation  the  liability  so  imposed  by  the  laws  of  the  State 
and  could  not  complain  of  it.    But  the  court,  in  its  opinion,  cites  with 


305 

approval  the  opinion  of  the  Supreme  Court  of  Nebraska.  That  court 
said:  "The  legislation  is  justifiable  under  the  poHce  power  of  the  State, 
so  it  has  been  held.  It  was  enacted  to  make  railroad  companies  insurers 
of  the  safe  transportation  of  their  passengers  as  they  were  of  baggage 
and  freight;  and  no  good  reason  is  suggested  why  a  railroad  company 
should  be  released  from  liability  for  injuries  received  by  a  passenger  while 
being  transported  over  its  line  while  the  corporation  must  respond  for 
any  damages  to  his  baggage  or  freight." 

The  Legislature  may  alter  or  repeal  the  common  law.  It  may  create 
new  offences,  enlarge  the  scope  of  civil  remedies,  and  fasten  responsibility 
for  injuries  upon  persons  against  whom  the  common  law  gives  no  remedy 
{Bertholf  v.  O'Reilly,  74  N.  Y.  504). 

It  would  seem  to  follow  that  it  might  make  those  who  employ  workmen 
in  dangerous  callings  insurers  to  some  extent  of  the  safety  of  such  work- 
men. The  common  law  imposed  upon  the  employee  entire  responsibility 
for  injuries  arising  out  of  the  necessary  risks  or  dangers  of  the  employ- 
ment. The  statute  before  us  merely  shifts  such  liability  upon  the  em- 
ployer. That  the  Legislature  has  the  power  to  deal  with  the  question 
of  employers'  liability  on  a  basis  other  than  fault  is  not  clear  beyond 
peradventure,  but  every  presumption  is  in  favor  of  the  constitutionality 
of  the  act,  nor  do  I  find  its  constitutionality  so  doubtful  as  to  warrant 
this  court  in  holding  that  such  action  is  not  within  the  constitutional 
powers  of  the  Legislature. 

I  have  examined  the  authorities  cited  by  the  learned  counsel  for  the 
defendant.  They  merely  point  out  the  shifting  character  of  the  border 
line  between  statutes  which  are  upheld  by  the  court  as  being  a  legitimate 
exercise  of  the  legislative  power  to  pass  all  manner  of  necessary  and  whole- 
some acts  for  the  protection  and  well-being  of  the  public,  although  such 
acts  may  interfere  with  personal  liberty  and  the  right  to  do  what  one 
will  with  his  own,  and  statutes  which  are  held  by  the  courts  to  interfere 
without  warrant  with  the  privilege  of  pursuing  an  ordinary  trade  or  calling, 
and  therefore  to  be  unconstitutional  and  void. 

In  the  case  of  Lochner  v.  New  York  (189  U.  S.  45)  the  prevailing  and 
dissenting  opinions  contain  a  full  discussion  of  the  principles  underlying 
the  decision  of  such  cases.  The  court  held  in  that  case  that  there  is  no 
reasonable  ground  on  the  score  of  health  for  interfering  with  the  Hberty 
of  the  person  or  the  right  of  free  contract  by  determining  hours  of  labor 
in  the  occupation  of  a  baker.  The  same  court  had  already  held  in  Holden 
v.  Hardy  (supra)  that  there  was  reasonable  ground  on  the  score  of  health 
for  interfering  with  the  liberty  of  the  person  and  the  right  of  free  contract 
in  determining  hours  of  labor  in  the  occupation  of  workingmen  in  smelters. 
In  the  former  case  the  public  good  did  not,  in  the  judgment  of  the  court, 
require  the  restrictive  legislation;  in  the  latter  case  it  did. 

In  the  latter  case  Mr.  Justice  Brown  says  that,  "This  court  has  not 
failed  to  recognize  the  fact  that  the  law  is  to  some  extent  a  progressive 


306 

science.  .  .  .  Classes  of  persons,  particularly  those  engaged  in  dangerous 
or  unhealthful  employments,  have  been  found  to  be  in  need  of  additional 
protection." 

As  to  the  objection  to  the  statute  that  it  hmits  the  amount  recoverable 
in  death  cases,  it  is  enough  to  say  that  it  is  for  the  plaintiff  to  make  the 
claim  of  unconstitutionaUty  in  this  regard,  as  it  is  the  plaintiff  alone  who 
is  prejudiced  thereby,  and  it  does  not  he  in  the  mouth  of  the  defendant  to 
raise  this  objection  to  the  statute. 

Demurrer  overruled,  with  costs,  and  judgment  absolute  for  the  plaintiff 
directed  on  the  pleadings,  with  costs. 


307 


APPENDIX  B. 

OPINION  OF  SAMUEL  WILLISTON,  LL.D. 
Constitutionality  of  Workmen's  Compensation  Acts. 

Various  forms  of  compensation  acts  for  workmen  have  been  suggested. 
They  may  be  classified  under  three  headings: — 

1.  The  assumption  by  the  state  of  the  burden  of  compensating  work- 
men and  their  families  for  accidents. 

2.  Compulsory  insurance  against  accidents  at  the  expense  either  of 
the  workman  or  of  his  employer,  or  at  the  joint  expense  of  both. 

3.  Such  a  change  in  the  rules  of  common  law  liability,  or  addition  to 
them,  as  will  render  the  employer  liable  for  accidents  to  his  employees 
irrespective  of  the  negligence  or  freedom  from  it  of  either. 

The  first  of  these  classes  need  not  have  extended  consideration.  Pre- 
sumably no  attempt  to  throw  the  whole  burden  of  industrial  accidents 
upon  the  state  would  as  yet  meet  with  popular  approval  even  assum- 
ing its  constitutionality.  In  my  opinion,  however,  such  legislation  would 
be  unconstitutional  in  that  it  discriminates  in  favor  of  accidents  caused 
to  workmen  in  the  course  of  their  employment  as  against  other  accidents 
whether  suffered  by  workmen  not  in  the  immediate  course  of  their  em- 
ployment or  suffered  by  persons  in  the  course  of  their  employment  who 
are  workmg  on  their  own  account  and  not  as  employees. 

The  second  kind  of  workmen's  compensation  law  to  which  I  have 
alluded,  that  of  compulsory  insurance,  seems  to  me  unconstitutionaL 
The  case  of 

Lochner  v.  New  York,  198  U.  S.  45, 

and  the  authorities  therein  cited,  show  how  completely  the  Supreme 
Court  of  the  United  States  has  recognized  freedom  of  contract  as  a  right 
of  property  guaranteed  by  the  Fourteenth  Amendment.  It  is  not  neces- 
sary to  agree  with  the  decision  of  the  case  itself  or  to  assume  that  it 
would  be  followed  on  its  precise  facts,  to  be  forced  to  conclude  that  any 
such  large  interference  with  freedom  of  contract  as  compeUing  all  work- 
men or  all  employers  to  insure,  would  be  unconstitutional.  It  is  of 
course  true  that  the  liberty  of  contract,  like  other  rights  of  property,  is 
not  absolute  but  subject  to  the  control  of  the  poUce  power  of  the  State. 
The  limits  of  the  poHce  power  are  confessedly  vague  but,  in  my  opinion, 
it  is  clear  that  such  legislation  as  is  here  considered  would  go  far  beyond 
them.    Perhaps  as  favorable  a  case  as  any  in  support  of  such  legislation  is 

Opinion  of  Justices,  163  Mass.  590, 

in  which  a  statute  requiring  weekly  payment  of  wages  to  workmen  was 


30S 

upheld.  But  even  so  mild  an  invasion  of  the  right  to  contract  as  is 
involved  in  that  statute  has  in  many  states  been  held  unconstitutional. 
See  the  decisions  cited  in  the  opinion  above  cited. 

The  attempt  to  enlarge  the  limits  fixed  by  the  common  law  for  liabil- 
ity for  an  injury  suffered  by  an  employee,  may  be  made  either  by  singling 
out  certain  especially  hazardous  employments  and  providing  that  in 
such  employments  the  master  shall  be  absolutely  liable  for  injuries  to 
his  servants,  or  by  taking  all  kinds  of  employments  and  providing  broadly 
that  all  masters  are  liable  for  accidents  to  their  servants.  The  first 
method  may  seem  in  some  respects  safer  though  less  ambitious,  for  the 
police  power  of  the  state  certainly  justifies  special  legislation  as  to  haz- 
ardous employments.  There  are  many  instances  of  special  burdens 
thrown  by  legislation  on  those  conducting  particular  employments  where 
special  circimtistances  make  the  burden  necessary  for  the  public  good. 
But  certainly  the  greatest  care  would  be  needed  in  selecting  for  enact- 
ment any  particular  kinds  of  employments  as  "extra  hazardous";  for 
while  reasonable  classification  is  permitted  and  may  be  made  without 
violation  of  the  Fourteenth  Amendment,  arbitrary  selection  cannot  be 
justified  by  calling  it  classification.  It  is  necessary,  moreover,  that  no 
person  who  does  not  properly  belong  to  the  class  covered  by  the  legis- 
lative enactment  be  included  in  it  and,  further,  what  would  be  very 
difficult  in  such  legislation  as  is  here  under  consideration,  that  all  who  are 
in  a  situation  indistinguishable  from  that  of  the  persons  included  in 
the  legislation  must  themselves  be  brought  within  its  scope.  The  mat- 
ter is  elaborately  discussed  with  full  citation  of  authorities  in  an  opinion 
in  the  Circuit  Court  of  Appeals  for  the  Eighth  Circuit  written  by  Judge 
Sanborn  in  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Wesiby,  178  Fed.  Rep.  619 
(April  12,  1910).  In  this  decision  a  statute  of  South  Dakota  exempting 
employees  of  common  carriers  from  the  Common  Law  rules  as  to  fellow 
servants  and  as  to  contributory  negligence  was  held  unconstitutional  in 
that  it  discriminated  in  favor  of  employees  of  carriers  as  against  em- 
ployees in  other  lines  of  work  where  the  service  might  be  practically 
identical. 

The  difficulty  of  any  classification  of  employments  which  will  not  be 
open  to  the  objections  cogently  set  forth  in  the  above  decision  is  such 
that  it  seems  wiser  to  attempt  to  bring  all  employments  within  the  scope 
of  the  new  rule,  if  it  is  at  all  possible  to  do  so. 

It  seems  that  this  Circuit  Court  of  Appeals  and  some  State  Courts 
are  somewhat  more  stringent  in  applying  well  recognized  rules  against 
arbitrary  selection  as  compared  with  classification  than  the  Supreme 
Court  of  the  United  States.  Thus  in  McLean  v.  Arkansas,  211  U.  S. 
539,  a  provision  in  regard  to  mines  employing  only  ten  men  was  upheld, 
and  in  Welch  v.  Swasey,  214  U.  S.  91,  the  Massachusetts  Statute  limiting 
the  height  of  buildings  within  a  small  specified  area  in  Boston  was  also 
held  constitutional,  yet  it  is  evident  that  though  the  distinction  between 


309 

the  large  mines  and  small  ones  is  clear,  and  the  distinction  between  the 
specified  area  in  Boston  and  other  places  somewhat  remote  from  it  is 
clear  enough,  the  precise  point  at  which  the  Legislature  will  draw  the 
line  must,  in  the  nature  of  the  case,  be  somewhat  arbitrary.  See  also 
the  recent  decision  of  Louisville  Etc.  R.  Co.  v.  Melton,  30  Supr.  Ct.  Rep. 
676.  It  is  at  least  clear,  however,  that  only  with  great  care  could  a 
classification  of  employments  be  made  which  would  not  be  open  to  the 
objections  urged  in  178  Federal  Reporter.  It  is  possible  that  a  statute 
might  endeavor  to  throw  on  the  court  the  work  of  selection  by  making 
an  enactment  appUcable  to  employments  of  more  than  common  danger, 
but  such  a  statute,  even  if  constitutional,  seems  objectionable  on  ac- 
count of  its  indefinite  character  which  would  require  prolonged  and  con- 
stant litigation  to  make  it  applicable  to  particular  facts.  If  a  satisfac- 
tory selection  can  be  made  by  the  legislature  or  if  a  statute  in  the  general 
form  referred  to  above  be  regarded  as  satisfactory,  there  still  remains  the 
question  whether  it  would  be  constitutional  to  make  the  employer  liable 
irrespective  of  fault  of  any  kind  on  his  part.  I  cannot  see  that  this  ques- 
tion is  materially  dififerent  when  asked  in  regard  to  selected  employments 
than  when  asked  in  regard  to  all  employments  and  I,  therefore,  regard 
the  discussion  which  follows  in  regard  to  all  employments  as  sufficiently 
covering  the  matter.  The  question  whether  all  employers  can  be  made 
liable  for  accidents  to  their  employees  may  be  perhaps  best  approached 
by  considering  steps  which  have  already  been  taken  or  at  least  have 
been  judicially  discussed. 

It  seems  safe  to  say  then,  first,  that  the  fellow  servant  doctrine  might 
be  abolished.  This  has  been  done  in  Colorado,  and  as  to  particular 
employments  in  several  other  states,  statutes  of  the  latter  class  have  been 
held  constitutional  by  the  United  States  Supreme  Court,  Minnesota  Iron 
Co.  V.  Kline,  199  U.  S.  593;  Louisville  Etc.  R.  Co.  v.  Melton,  30  Supr.  Ct. 
Rep.  676  and  cases  cited. 

Second.  The  doctrine  of  assumption  of  risk  by  the  employee  may 
probably  be  constitutionally  abolished.  See  Schlemmer  v.  Buffalo  Etc. 
Ry.  Co.,  205  United  States  1. 

Three.  The  whole  doctrine  of  contributory  negligence  could  prob- 
ably also  be  abohshed,  ibid.  See,  however.  Employees'  LiabiHty  Cases, 
207  U.  S.  463,  215  United  States  .  .  .  Hoxie  v.  N.  Y.,  N.  H.  &  H.  R.R. 
Co.,  82  Conn.  352. 

Still  further,  I  believe  it  to  be  possible  for  the  legislature  to  authorize 
the  employers  to  enter  into  fair  contracts  with  their  employees  by  means 
of  which  the  employees  contract  to  surrender  common  law  rights  tore- 
cover  for  injuries,  receiving,  instead,  an  absolute  right  to  recover  certain 
amounts  for  accidents,  however  caused.  Such  contracts  have  been  com- 
monly made  by  railroad  companies,  and  have  in  some  instances  at  least 
been  upheld.  They  have  been  forbidden  by  statutes  in  some  states, 
but  where  the  employee  is  not  required  to  surrender  his  common  law 


310 

rights  until  after  the  injury  such  an  agreement  seems  clearly  good  at 
common  law.    Hamilton  v.  St.  Louis  Etc.  R.R.  Co.,  118  Fed.  Rep.  92. 

I  see  no  reason  why  a  statute  could  not  authorize,  if  it  were  desirable, 
a  fair  contract  to  surrender  his  common  law  rights  made  by  the  employee 
when  entering  into  his  employment.  If  such  a  contract  is  now  against 
pubUc  policy  it  is  because  the  master  is  in  such  a  position  of  advantage 
that  the  contract  is  not  likely  to  be  fair. 

In  three  of  four  methods  of  procedure  just  alluded  to,  the  master  is 
held  liable  because  of  some  fault  of  his  own,  and  in  the  fourth  method  he 
is  made  liable  for  accidental  injuries  by  the  terms  of  his  express  contract. 
If  he  can  constitutionally  be  made  liable  for  purely  accidental  injury 
without  his  assent,  it  must  be  because  entering  into  any  business  where 
workmen  are  employed  is  an  assumption  by  the  master  of  the  chance  of 
injury  to  his  workmen  owing  to  risks  inherent  in  the  nature  of  the  em- 
ployment. In  no  case,  I  feel  satisfied,  can  an  employer  constitutionally 
be  made  liable  for  other  risks  than  those  which  are  naturally  incidental 
to  the  business  in  which  he  is  engaged.  Whether  he  can  be  held  liable 
for  such  injuries  where  the  only  ground  of  Uability  consists  in  his  going 
into  the  business  in  which  he  is  engaged,  must  certainly  be  regarded  as 
doubtful.  As  going  some  distance  in  that  direction,  however,  see  Chicago 
Etc.  R.  Co.  V.  Zernecke,  183  U.  S.  582.  So,  the  reasoning  of  Mr.  Jus- 
tice Moody  in  210  U.  S.  at  page  295,  though  involving  a  question  of 
construction  rather  than  one  of  constitutionality,  is  certainly  favorable 
to  the  theory  that  an  employer  may  be  regarded  as  assuming  certain 
risks  by  virtue  of  his  becoming  such,  and  many  people,  lawyers  and 
others,  are  undoubtedly  hospitable  to  such  reasoning  at  the  present 
time.  I  am,  myself,  hospitable  to  it,  but  as  a  lawj^er  I  must  admit  on 
the  authorities  as  they  stand  at  present,  the  question  can  only  be  re- 
garded as  a  somewhat  dubious  one. 

If  a  law  can  be  framed  which  is  constitutional  in  its  main  purpose, 
some  subsidiary  questions  may  arise,  chief  among  them  being  the 
possibiUty  of  avoiding  trial  by  jury.  In  my  opinion  this  can  be  done. 
A  person  may  undoubtedly  waive  his  right  to  a  jury  trial  and  by 
giving  the  workman  alternative  rights  either  at  common  law  or 
under  a  compensation  law,  but  compelling  him  to  elect  after  the 
injury  which  he  will  have,  it  would  seem  that  the  procedure  under 
the  compensation  law  need  not  include  jury  trial  so  far  as  he  is 
concerned.  But  the  employer  also  has  a  constitutional  right  to  jury 
trial,  though  he  may  not  care  to  insist  upon  it.  If,  however,  the 
procedure  under  the  compensation  statute  requires  forms  of  relief  which 
common  law  courts  cannot  give,  it  would  seem  constitutional  to  give  the 
remedy  to  a  court  having  equity  powers  and  not  having  a  jury.  The 
right  to  pay  the  compensation  in  instalments  and  to  diminish  and  in- 
crease it  may  be  given  by  the  statute  and  such  relief  cannot  be  secured  by 
a  common  law  judgment.    There  is  no  doubt  that  new  equitable  rights 


311 

may  be  created  by  statutes.  For  instance,  in  many  states  bills  in  equity 
by  way  of  attachment  or  trustee  process  are  allowed,  and  under  these 
statutes  cases  of  purely  legal  aspect  are  tried  in  equity,  the  only  ground 
of  equity  jurisdiction  being  the  necessity  of  equitable  aid  to  seize  property 
to  secure  the  plaintiff's  judgment.  Other  instances  might  be  added. 
There  is  no  doubt  also  that  in  regard  to  equitable  rights,  the  parties  have 
no  constitutional  right  to  trial  by  jury. 

Parker  v.  Simpson,  180  Mass.  334. 

Lascelles  v.  Clark,  204  Mass.  364. 

It  seems  possible  also  to  affect  any  insurance  which  the  master  may  have 
against  accident  with  a  lien  in  favor  of  the  injured  employee.  I  have 
diflSculty  in  seeing  how  such  a  lien  can  be  made  to  arise  on  the  bankruptcy 
or  insolvency  of  the  employer,  but  if  the  lien  created  arises  as  soon  as 
the  employee  notifies  the  insurance  company  of  the  accident,  I  see  no 
difficulty. 

More  Detailed  Opinion  in  Regard  to  the  Possibility  of  exclud- 
ing THE  Right  of  Trial  by  Jury  in  a  Workman's  Compensation 
Law. 

There  is  nothing  in  the  Federal  Constitution  which  requires  trial  by 
jury  in  civil  cases.  It  is  under  the  provisions  of  the  State  Constitutions 
that  such  questions  will  arise,  and  as  the  language  of  the  State  Consti- 
tutions is  various,  an  exhaustive  opinion  should  be  based  on  examination 
of  the  Constitution  and  decisions  of  each  State.  I  am  unable  to  go  into 
the  matter  with  this  degree  of  exhaustiveness,  but  I  submit  some  con- 
siderations and  authorities. 

The  Texas  Constitution  at  least  requires  that  the  decision  of  issues 
of  fact  even  in  equitable  cases  of  action  be  determined  by  jury  trial. 
Under  such  a  Constitution  it  is  perfectly  clear  that  there  is  no  escape 
from  the  jury  in  case  of  workmen's  compensation. 

More  commonly,  however,  Constitutions  provide  in  various  forms 
of  words  that  trial  by  jury  shall  be  retained  or  shall  not  be  impaired. 
Under  such  constitutional  provisions  it  has  been  held  that  a  new  statu- 
tory right,  at  any  rate  if  it  were  necessary  or  convenient  so  to  provide, 
might  be  enforced  by  means  of  a  procedure  which  excluded  juries. 

In  the  State  Tax  Law  Cases,  54  Mich.  367,  Mr.  Justice  Cooley  said: — 

"This  case  is  a  proceeding  in  equity  instituted  by  the  State  to 
enforce  against  a  parcel  of  land  a  lien  which  it  claims  for  taxes,  and 
it  is  a  different  proceeding  altogether  from  any  which  was  known 
to  our  jurisprudence  in  1850.  It  is  a  new  proceeding,  and  there- 
fore if  jury  trial  cannot  be  had  in  it,  that  method  of  trial  is  not  cut 
off,  but  is  simply  not  given.    There  is  nothing  in  the  Constitution 


312 

which  renders  it  necessary  to  provide  for  jury  trial  in  new  cases. 
The  constitutional  provision  is,  'The  right  of  trial  by  jury  shall 
remain,'  by  which  we  are  to  understand  merely  that  it  is  retained 
for  the  cases  in  which  it  existed  before." 

This  case  was  cited  and  followed  in  Ball  v.  Ridge  Copper  Co.,  118  Mich. 
7,  where  it  was  held  that  the  Constitution  was  not  violated  by  a 
provision  authorizing  the  court  to  put  the  purchaser  under  a  tax  deed 
in  possession  by  means  of  a  writ  of  assistance. 

In  Parmalee  v.  Price,  208  111.  545,  the  Illinois  Constitution  was  con- 
strued as  guaranteeing — 

''The  right  to  a  trial  by  jury  practically  as  that  right  existed  at 
the  common  law.  It  does  not  give  the  right  of  jury  trial  in  any  class 
of  cases  in  which  that  right  did  not  exist  at  common  law." 

The  statute  under  consideration  permitted  a  creditor  of  a  corporation 
to  proceed  in  equity  to  collect  his  claim  against  a  stockholder  without 
reducing  to  judgment  his  claim  against  the  corporation,  and  the  statute 
was  held  constitutional  though  no  trial  by  jury  was  permitted.  The 
court  said  at  page  558: — 

"Where  a  new  class  of  cases  is  directed  by  the  Legislature  to  be 
tried  in  chancery,  and  it  appears  when  tested  by  the  general  prin- 
ciples of  equity  that  they  are  of  an  equitable  nature  and  can  be  more 
appropriately  tried  in  a  court  of  equity  than  a  court  of  law,  the 
chancellor  will  have  the  right,  as  in  other  cases  in  chancery,  to 
determine  all  questions  of  fact  without  submitting  them  to  a  jury 
{Ward  V.  Farwell,  97  111.  593;  Chicago  Mutual  Life  Indemnity  Ass. 
V.  Hunt,  127  id.  257).  The  constitutional  provision  in  question 
'introduced  no  new  rule  of  law,  but  merely  preserved  the  right 
already  existing.  It  does  not  apply  to  suits  in  equity,  or  to  any 
statutory  proceeding  to  be  had  in  courts  of  equity.'"  Keith  v. 
Henkleman,  173  111.  137. 

So  in  Hathorne  v.  Panama  Park  Co.,  44  Fla.  194,  the  first  section  of 
the  head-note  reads: — 

"The  provision  of  the  Constitution  that  the  'right  of  trial  by 
jury  shall  be  secured  to  all  and  remain  inviolate  forever'  guarantees 
such  right  only  in  those  cases  where  at  the  time  of  the  adoption  of 
the  Constitution  the  law  gave  that  right;  and  not  in  those  cases 
where  the  right  and  the  remedy  with  it,  are  thereafter  created  by 
statute,  nor  where  the  cause  was  already  the  subject  of  equity  juris- 
diction." 

The  statute  involved  in  the  case  was  one  providing  for  the  enforcement 
of  mechanics'  liens  by  bill  in  equity. 
So  in  Harrigan  v.  Gilchrist,  121  Wis.  127,  281,  the  court  dealt  in  the 


313 

same  way  with  a  statutory  action  of  a  creditor  against  a  corporation, 
saying:— 

"A  statutory  action  may  or  may  not  be  an  action  at  law  accord- 
ing as  the  statutory  incidents  conform  to  one  or  the  other  from  a 
common  law  point.  Wilier  v.  Bergenthal,  50  Wis.  474,  7  N.  W. 
352;  Bentley  v.  Davidson,  74  Wis.  420,  43  N.  W.  139.  The  only 
right  of  trial  by  jury  guaranteed  by  the  Constitution  is  the  right 
as  enjoyed  at  the  time  the  Constitution  was  adopted.  There  is 
no  such  right  as  regards  a  statutory  action  unless  such  action  is 
coupled  with  statutory  incidents  indicating  that  it  is  strictly  legal 
in  character,  or  the  remedy  of  trial  by  jury  is  expressly  given  by  the 
statute." 

I  believe  the  extracts  from  these  decisions  represent  the  construction 
which  would  generally  be  given  to  the  provisions  in  State  Constitutions 
relating  to  jury  trial. 

If  the  Workmen's  Compensation  Law  imposes  liability  upon  the 
master,  irrespective  of  any  fault  on  his  part,  it  is  certainly  a  very  differ- 
ent kind  of  habihty  from  anything  which  the  common  law  imposes. 
Moreover,  the  provision  suggested  for  increasing,  diminishing,  or  al- 
together taking  away  instalment  payments  decreed  as  compensation 
is  peculiarly  appropriate  for  a  court  of  equity.  The  right  to  give  equi- 
table jurisdiction  in  such  a  case  is  clearer  where  the  law  still  leaves  the 
workman  as  an  alternative  right  his  common  law  right  of  action  for 
negligence. 

I  am,  therefore,  of  opinion  that  such  a  law  as  I  have  suggested; 
namely,  where  the  employer  is  made  liable,  irrespective  of  any  fault 
on  his  part,  where  the  compensation  is  payable  in  instalments  which 
are  subject  to  change,  and  where  the  old  common  law  rules  of  liability 
are  still  preserved,  may  in  most  States  constitutionally  dispense  with 
trial  by  jury. 

The  provision  relating  to  jury  trial  in  the  Massachusetts  Constitution 
is,  however,  peculiar  in  its  wording  and  may  require  a  different  con- 
struction. Article  15  of  the  declaration  of  rights  secures  the  right  of 
trial  by  jury  in  all  controversies  concerning  property  and  in  all  suits 
between  two  or  more  persons  except  in  cases  in  which  theretofore  it  had 
been  otherwise  used  and  practised.  It  will  be  observed  that  this  lan- 
guage in  terms  provides  that  a  jury  shall  be  had  except  where  there  had 
been  previous  practice  to  the  contrary.  Whereas  in  the  State  Consti- 
tutions alluded  to  above  the  provision  was  in  effect  that  a  jury  trial  must 
be  retained  in  cases  where  it  formerly  had  been  customary.  This 
difference  is  important,  and  the  Massachusetts  decisions  seem  to  show 
that  the  Massachusetts  court  insists  upon  the  difference,  and  that  in  any 
new  proceeding  unknown  to  the  common  law  the  right  of  trial  by  jury 
must  be  preserved.    This  is  expressly  so  stated  in  Hubbard  v.  Lamburn, 


314 

189  Mass.  296,  299,  where  it  was  held  that  a  claimant  in  trustee  process 
was  entitled  to  trial  by  jury;  so  in  Powers  v.  Raymond,  137  Mass.  483, 
a  bill  by  a  creditor  to  reach  and  apply  assets  conveyed  in  fraud  of  cred- 
itors by  the  debtor,  it  was  held  that  the  parties  had  the  right  under  the 
Constitution  to  have  issues  to  a  jury  framed  covering  the  material  facts 
at  issue. 

It  will  be  observed  that  the  question  presented  in  this  case  was  in 
substance  identical  with  that  presented  in  the  case  above  referred  to  in 
Parmalee  v.  Price,  208  111.  544,  where  the  IlUnois  court  held  no  jury  was 
necessary. 

It  is  no  answer  to  the  Massachusetts  decisions  above  cited  to  refer  to 
provisions  in  the  Massachusetts  statutes  providing  for  proceedings  in 
equity  to  enforce  new  statutory  rights.  In  some  cases  such  statutory 
proceedings  are  for  the  enforcement  of  a  public  right,  and  this  is  not  a 
suit  between  two  or  more  persons  within  the  meaning  of  the  Constitu- 
tion. Attorney-General  v.  Sullivan,  163  Mass.  446,  451.  Wherever  this 
explanation  of  the  statutes  is  not  possible,  it  can  only  be  said  that, 
though  the  statute  may  not  say  so,  by  virtue  of  the  Constitution  issues 
of  fact  for  the  jury  must  be  framed  by  the  court  of  equity  to  which 
jurisdiction  is  given,  as  was  held  in  the  case  of  Powers  v.  Raymond,  supra. 
I  see  nothing  in  the  case  of  Lascelles  v.  Clark,  204  Mass.  362,  to  indicate 
a  disposition  on  the  part  of  the  court  to  change  the  construction  of  the 
constitution  previously  established.  See  further  Parker  v.  Simpson, 
180  Mass.  334. 

Though  the  right  to  have  issues  of  fact  by  a  jury  is  therefore  unavoid- 
able in  Massachusetts,  it  seems  entirely  possible  to  give  jurisdiction  to 
a  tribunal  having  equity  powers,  if  each  party  is  given  the  right  to  have 
issues  of  fact  framed  for  jury  trial.  See  Brown's  Case,  173  Mass.  498, 
501. 


315 


APPENDIX  C. 

DEPARTMENT  ON  COMPENSATION 

INDUSTRIAL  ACCIDENTS  AND  THEIR  PREVENTION 

THE   NATIONAL   CIVIC   FEDERATION 

November  10,  1910. 

Mr.  Magnus  W.  Alexander, 

Conference  of  Compensation  Commissions, 
Hotel  La  Salle, 
Chicago,  111. 

My  dear  Sir, — If  you  can,  consistently,  will  you  be  kind  enough  to 
present,  as  a  member  of  our  Department  on  Compensation  for  Industrial 
Accidents,  the  following  communication  to  the  joint  meeting  of  the  offi- 
cial workmen's  compensation  commissions  meeting  in  Chicago,  Novem- 
ber 10  and  11? 

Our  Department  is  composed  of  six  hundred  employers,  represen- 
tative labor  men,  attorneys  who  have  given  special  consideration  to  the 
subject,  insurance  experts,  economists.  State  officials,  members  of  State 
compensation  commissions,  and  others  concerned.  Practical  men,  rep- 
resenting all  interests,  are  working  together  in  this  Department  of  the 
Federation  to  help  solve  the  problem  how  to  lessen  the  hardships  from 
the  hazards  of  industry. 

The  three  natural  divisions  of  the  work  have  been  assigned  to  the 
following  committees: — 

1.  The  Legal  Committee,  which  is  drafting  a  tentative  compensation 
plan  for  uniform  State  legislation,  as  a  substitute  for  the  present  liability 
laws,  with  P.  Tecumseh  Sherman  as  Chairman. 

2.  The  Committee  on  Statistics  and  Cost  of  substituting  the  compen- 
sation principle  for  the  present  liability  laws,  with  Sylvester  C.  Dun- 
ham as  Chairman. 

3.  The  Committee  on  Improvement  of  State  Factory  Inspection,  it 
being  equally  important  to  prevent  as  to  compensate  for  accidents.  Mr. 
Louis  B.  Schram  is  Chairman  of  this  committee. 

Our  Legal  Committee  is  now  considering  a  formulate  bill. 

Any  plan  adopted  naturally  must  conform  to  State  constitutions  and 
court  decisions.  Therefore,  the  committee  will  soon  submit  its  plan  to 
the  Commissioners  on  Uniform  State  Laws  in  the  forty-six  States  and 
Territories  and  to  the  Committee  on  Compensation  appointed  by  the 
American  Bar  Association,  as  well  as  to  the  Executive  Committee  of  the 
various  State  bar  associations,  to  obtain  their  opinions  upon  its  con- 
stitutionality in  their  respective  States. 


316 

The  Federation's  Legal  Compensation  Committee  hopes  to  receive  the 
advice  sought  from  the  commissioners  and  members  of  the  bar  before 
reporting  its  plan  finally  to  the  Federation's  Compensation  Department 
at  its  next  meeting. 

As  six  of  the  State  Legislatures  meet  in  January,  1911,  and  as  only 
eight  States  have  official  commissions,  the  Federation  is  addressing  letters 
to  all  Governors  and  Governors-elect  in  the  remaining  States,  asking 
them  to  urge  the  creation  of  such  commissions  in  their  messages  to  their 
respective  legislatures.  This  effort  will  be  seconded  by  our  State  mem- 
bers, who  will  follow  up  the  matter  with  their  Governors. 

Many  of  the  members  of  the  Federal  and  of  the  State  commissions 
are  members  of  our  Compensation  Department.  A  meeting  of  that 
Department,  to  pass  upon  our  proposed  measure,  will  be  held  on  De- 
cember 22,  1910.  Allow  me  to  express  the  hope  that  the  participants  of 
this  joint  meeting  of  the  workmen's  compensation  commissions  may  be 
able  to  attend  that  meeting,  whether  you  are  able  at  this  time  to  com- 
plete a  bill  or  not,  and  at  our  meeting  give  us  the  benefit  of  your  advice; 
for  it  goes  without  saying  that  the  Federation  and  its  voluntary  com- 
mittees will  not  urge  a  measure  that  will  conflict  with  a  uniform  bill 
agreed  upon  and  drafted  by  the  official  commissions.  It  will  be  our 
policy  to  use  what  influence  we  can  in  States  where  there  are  oflicial 
commissions  to  secure  the  passage  of  such  a  measure  as  all  agree  upon  for 
uniformity. 

Due  notice  will  be  given  your  members  of  the  exact  time  and  place  for 
the  next  meeting  of  our  Department. 

Very  truly  yours, 

(Signed)        AUGUST  BELMONT, 

Chairman, 


317 


APPENDIX  D. 

The  following  acts  were  drafted  after  the  close  of  the  Conference  by  a 
committee,  consisting  of  H.  V.  Mercer,  of  Minnesota,  John  H.  Wig- 
more,  of  Illinois,  and  A.  W.  Sanborn,  of  Wisconsin,  who  were  appointed 
by  the  Conference  to  draft  two  acts,  one  compulsory,  the  other  elective. 
These  acts  have  not  been  submitted  to  the  other  members  of  the  Confer- 
ence, and  therefore  reflect  only  the  views  of  the  members  of  the  com- 
mittee on  the  several  points  where  they  are  not  in  accordance  with  the 
votes  of  the  Conference.  The  Notes  following  were  also  prepared  by 
the  committee,  and  will  serve  to  explain  the  reasons  for  any  divergence 
of  the  acts  from  the  votes  of  the  Conference. 

CONFERENCE  UNIFORM  DRAFT  OF  AN  EMPLOYEES' 
COMPENSATION  CODE. 

{Form  1:    Making  the  Compensation  System  Mandatory.) 

Preamble. 

1.  Rights  and  Liabilities  Defined. 

2.  Amounts  of  Compensation  Allowed. 

3.  Mode  of  Claiming  Compensation. 

4.  Legal  Effect  of  Settlements  and  Claims. 

5.  Board  of  Arbitration;  Jurisdiction  and  Powers. 

6.  Procedure  and  Awards  under  Arbitration. 

7.  Insurance. 

8.  Rights  and  Liabilities  of  Third  Persons. 

9.  Words  and  Phrases  Defined. 

*  10.  Time  of  Code's  taking  Effect. 

CONFERENCE  UNIFORM  DRAFT  OF  AN  EMPLOYEES' 
COMPENSATION  CODE. 

(For  meaning  of  Code,  see  Committee  Note  on  "Title.") 

Preamble. 
(See  Committee  Note  on  "Preamble.") 

Whereas  our  modern  industrial  conditions  have  outgrown  the 
common  law  and  statutory  remedies  hitherto  given  to  employees  for 
injuries  incident  to  their  employments,  and  the  injuries  now  annually 
received  by  thousands  of  workmen  not  only  burden  the  community 
by  converting  industry  into  idleness,  plenty  into  poverty,  but  also  give 


318 

rise  to  speculative  and  unscrupulous  litigation  which  is  a  disgrace  to  our 
system  of  justice;  and 

Whereas  most  of  the  European  nations  have  already  corrected, 
and  the  United  States  Government  and  many  of  our  States  are  now 
seeking  to  correct,  this  deplorable  condition  by  a  system  of  assured  com- 
pensation which  will  tend  to  prevent  accidents,  to  support  the  families,, 
and  to  safeguard  the  general  welfare  of  the  State,  and  will  provide  sim- 
pHcity,  certainty,  and  uniformity  of  obUgation,  and  simplicity,  rapidity^ 
and  certainty  of  remedy;  and 

Whereas  Commissions  appointed  by  many  of  our  States  have  in- 
vestigated this  subject,  both  at  home  and  abroad,  to  determine  what 
the  facts  demand  and  the  constitutions  allow,  and  numerous  conferences 
have  been  held  between  the  commissioners  of  those  States,  many  of 
whom  were  appointed  to  represent  employers,  employees,  or  bar  asso- 
ciations, with  representatives  of  the  Federal  Government  and  private 
institutions  interested  in  the  subject,  including  a  committee  of  the 
National  Conference  on  Uniform  State  Laws,  at  which  conferences  various 
theories  and  provisions  of  bills  have  been  discussed,  with  a  view  to  mak- 
ing them  appUcable  to  the  situation  within  the  Constitution;  and 

Whereas  it  has  been  the  satisfactory  experience  of  more  than  twenty 
foreign  countries  and  seems  to  be  the  unanimous  view  of  those  well  in- 
formed on  the  subject  that  a  code,  changing  the  basis  of  compensation 
for  an  employee  from  that  of  negligence  or  fault  of  the  employer  to  that 
of  a  risk  of  the  industry  or  that  of  industrial  insurance,  should  replace 
the  present  inadequate  system;   and 

Whereas  at  the  last  of  such  conferences  a  committee  was  appointed 
and  empowered  to  formulate  such  a  code  to  protect  adequately  the  gen- 
eral welfare  under  the  police  power  of  the  State,  which  draft  this  Legis- 
lature has  herein  followed  as  consistently  as  possible  with  our  interests 
in  this  State, — 

Now,  therefore,  be  it  enacted  by  the  Legislature  of  the 
State  of  that: — 

1.    Rights  and  Liabilities  Defined. 

(For  Section  1,  see  Committee  Note  and  Conference  Proceed- 
ings, p.  210.) 

Section  1.  Rights  and  Remedies  Granted  and  Amended.  The  right 
to  compensation  and  the  remedy  therefor,  herein  granted,  shall  be  in 
lieu  of  all  rights  and  remedies  now  existing,  either  at  common  law  or  by 
statute,  either  upon  the  theory  of  negligence  or  otherwise,  for  the  injuries 
covered  by  this  Code;  and  no  other  compensation,  right  of  action,  dam- 
ages, or  liabiHty,  shall  hereafter  be  allowed  to  either  the  injured  or  de- 
pendants for  such  injuries,  so  long  as  this  Code  shall  remain  in  force, 
unless,  and  to  the  extent  only  that,  this  Code  shall  be  specifically  amended.. 


319 

(For  Section  2,  see  Committee  Note  2  and  Conference  Pro- 
ceedings, pp.  31,  277.) 

Section  2.  Dangerous  Employment  Defined.  Every  employment  in 
which  there  occurs  hereafter  to  any  of  the  employees  personal  injuries 
arising  out  of  and  in  the  course  of  such  employment  is  for  the  purpose 
of  this  Code  hereby  declared  a  dangerous  employment,  and  consequently 
subject  to  the  provisions  of  this  Code  and  entitled  to  all  the  benefits 
thereof. 

(For  Section  3,  see  Committee  Note  3  and  Conference  Pro- 
ceedings, pp.  38,  146.) 

Section  3.  Compensation,  Conditions  of  the  Right  to.  Every  employer 
engaged  in  such  dangerous  employment  shall  be  subject  to  the  provisions 
of  this  Code,  and  shall  pay  compensation,  according  to  the  conditions 
herein  named  and  the  schedule  of  rates  contained  in  Section  4  hereof, 
to  every  such  employee  so  injured  in  his  employment,  or,  in  case  of  death 
caused  by  such  injuries,  to  the  dependants  as  hereinafter  defined  and 
apportioned,  for  all  personal  injuries  received  by  such  employee  arising 
out  of  and  in  the  course  of  such  employment  and  disabling  such  employee 
from  regular  services  in  such  employment,  and  not  purposely  self-inflicted 
to  obtain  compensation;  but  on  the  condition  that,  in  case  of  dispute 
between  the  parties  as  to  the  injury  or  any  of  the  matters  herein  named 
relating  thereto,  the  controversy  shall  be  brought  before  and  determined 
by  the  Board  of  Arbitration  as  hereinafter  provided. 

2.    Amounts  of  Compensation  Allowed. 

(For  Section  4,  see  Conference  Proceedings,  pp.  99,  302.) 

Section  4.  Compensation  for  Waiting  Period.  No  compensation  shall 
be  allowed  for  the  first  two  weeks  after  injury  received,  except  that  cov- 
ered by  Sections  5  and  6,  nor  in  any  case  unless  the  employer  has  actual 
knowledge  of  the  injury  or  is  notified  within  the  period  specified  in 
Section  14. 

(For  Section  5,  see  Committee  Note  5  and  Conference  Pro- 
ceedings, p.  135.) 
Section  5.  Compensation  for  Medical  Expenses.  During  the  first  two 
weeks  after  the  injury  the  employer  shall  furnish  reasonable  medical  and 
hospital  services  and  medicines,  when  needed,  not  to  exceed  one  hundred 
dollars  in  value,  unless  the  employee  refuses  to  allow  them  to  be  furnished 
by  the  employer. 

(For  Section  6,  see  Conference  Proceedings,  p.  135.) 
Section  6.    Compensation  for  Funeral  Expenses.    In  case  the  injury 
causes  death  within  the  period  of  years,  the  reasonable  funeral 

expenses  not  to  exceed  one  hundred  dollars  shall  be  paid  by  the  employer. 


320 

(For  Section  7,  see  Conference  Proceedings,  pp.  57,  70,  101,  106, 
174,  and  Conmiittee  Notes  7-9.) 

Section  7.  Compensation  upon  Death.  In  case  the  injury  causes  death 
within  the  period  of  years,  the  compensation  shall  be  in  the 

amounts  and  to  the  persons  following: — 

Par.  a.  No  Dependants.  If  there  be  no  dependants,  then  the  medical, 
hospital,  and  funeral  expenses,  as  above  provided  in  Sections  5  and  6. 

Par.  b.  Dependants.  If  there  are  wholly  dependent  persons  at  the 
time  of  death,  then  a  payment  of        per  cent,  of  the  first  dollars 

of  the  weekly  wage  and       per  cent,  of  the  balance  of  such  wage,  to  be 
made  at  the  intervals  when  such  wage  was  payable,  and  to  continue  for 
the  remainder  of  the  period  between  the  death  and  the  end  of  the 
years  after  the  occurrence  of  the  injury,  but  in  no  case  to  continue  longer 
than  years  after  the  injury  or  to  amount  to  more  than 

thousand  dollars  on  account  of  the  compensation  for  the  injury  to  that 
person. 

Par.  c.  Partial  Dependants.  If  the  deceased  leave  only  persons  partially 
dependent,  they  shall  receive  only  that  proportion  of  the  benefits  provided 
for  those  wholly  dependent  which  the  amount  of  the  wage  contributed 
by  the  deceased  to  such  partial  dependants  at  the  time  of  injury  bore  to 
the  total  wage  of  the  deceased. 

Par.  d.  Who  are  Dependants.  The  entire  compensation  granted  by 
this  Code  in  case  of  death  shall  be  paid  to  one  of  the  following  persons, 
if  dependent,  who  shall  be  entitled  to  receive  such  payments  after  the  due 
date  in  the  order  in  which  they  are  named: — 

(1)  Husband  or  wife,  as  the  case  may  be.  (2)  Guardian  of  children. 
(3)  Father.     (4)  Mother.     (5)  Sister.     (6)  Brother. 

Payment  to  a  person  subsequent  in  right  shall  be  lawful,  and  shall 
discharge  all  claim  therefor  if  the  person  having  the  prior  right  has  not 
claimed  the  payment  prior  to  the  time  when  the  same  is  in  fact  made. 

Par.  e.  Application  of  Payments.  The  person  to  whom  the  payment 
is  made  shall  apply  the  same  to  the  use  of  the  several  beneficiaries  accord- 
ing to  their  respective  claims  upon  the  decedent  for  support.  In  case 
any  payee  or  employer  is  not  certain  as  to  the  person  to  whom  payment 
or  distribution  should  be  made,  and  in  case  any  beneficiary  is  not  satis- 
fied with  the  distribution  thereof,  appHcation  may  be  made  to  the  Board 
of  Arbitrators  to  designate  the  person  to  whom  payment  shall  be  made, 
and  the  apportionment  thereof  among  the  beneficiaries  and  payment 
and  distribution  shall  thereafter  be  made  in  accordance  with  the  decision 
of  the  Board.  If  the  matter  be  in  dispute  or  incapable  of  prompt  de- 
termination, the  Board  may  order  the  money  to  be  paid  over  to  it,  to 
be  held  for  the  proper  dependants. 


321 

(For  Section  8,  see  Conference  Proceedings,  pp.   51,  70,  and 
Committee  Notes  7-9.) 

Section  8.  Compensation  upon  Total  Disability.  In  case  of  tempo- 
rary or  permanent  total  disability  of  the  employee  from  the  time  the 
payment  period  begins  until  the  end  of  the  year  period  or  during 

any  portion  thereof,  the  compensation  shall  be  per  cent,  of  the 

first  dollars  per  week  and  per  cent,  of  the  balance  of 

such  wage  during  such  disability;   payment  to  be  made  at  the  intervals 
when  such  wage  was  payable,  but  in   no  case  to  continue  longer  than 
years  from  the  injury  or  amount  to  more  than  thou- 

sand dollars  for  that  injury,  and  not  to  include  the  time  when  the  rule 
for  payment  upon  death  would  operate. 

(For  Section  9,  see  Conference  Proceedings,  p.  70,  and  Commit- 
tee Notes  7-9.) 

Section  9.  Compensation  for  Partial  Disability.  In  case  of  temporary 
or  permanent  partial  disability  the  employee  shall  receive  per 

cent,  of  the  decrease  of  his  earnings  during  the  continuance  thereof,  but 
not  to  continue  more  than  years  in  time  from  the  injury  or  to 

amount  to  more  than  thousand  dollars  for  that  injury,  and  not 

to  include  the  time  when  the  rules  for  payment  upon  death  or  total  dis- 
ability would  operate. 

(For  Section  10,  see  Conference  Proceedings,  p.  56,  and  Com- 
mittee Note  10.) 

Section  10.    Payinent  in  Lump  Sum. 

Par.  a.  The  amounts  payable  periodically  under  the  foregoing  sec- 
tions may  be  commuted  to  one  or  more  lump-sum  payments  by  the  Board 
of  Arbitration  at  any  time  after  one  year  if  special  circumstances  be 
found  which,  in  the  judgment  of  the  Board,  require  the  same. 

Par.  b.  The  Board  of  Arbitration  may  at  any  time  by  award  allow 
any  employer  or  any  insurer  of  such  employer  to  compromise  and  settle 
any  award  by  the  transfer  of  property  on  the  settlement  of  an  annuity 
or  other  form  of  benefits,  provided  that  the  same  be  in  the  interests  of 
justice. 

Section  11.     Wages  Defined. 

Par.  a.  Regular  Employee.  When  the  employee  is  employed  at  the 
time  of  the  injury  in  a  regular  capacity  at  a  fixed  and  reasonable  wage 
which  remains  unaltered  substantially  throughout  the  year  either  in  his 
own  case  or  in  the  case  of  persons  engaged  in  the  like  employment,  the 
wage  taken  as  the  basis  of  compensation  under  the  foregoing  sections 
shall  be  the  wage  he  is  actually  receiving. 

Par.  b.  Other  than  Regular  Employees.  Where  the  employee  is  at  the 
time  of  the  injury  employed  other  than  as  above,  the  wage  so  taken  shall 


322 

be  an  average  or  fair  wage  which  the  particular  employee  ought  to  re- 
ceive on  a  reasonable  basis,  considering  the  rate  he  has  been  getting,  his 
ability  and  willingness  to  work,  the  nature  of  the  service  he  was  perform- 
ing, and  all  of  the  other  circumstances  of  the  case. 

(For  Section  12,  see  Conference  Proceedings,  p.  126,  and  Com- 
mittee Note  12.) 

Section  12.    Conditions  varying  Compensation. 

Par.  a.  If  the  employer  shall  clearly  establish  that  the  injuries,  death, 
or  disability,  was  due  in  whole  or  in  part  to  the  employee's  previous  in- 
juries, sickness,  disease,  physical  ailments  or  deficiencies,  age,  or  infirm- 
ity, then  and  to  that  extent  only  the  compensation  herein  allowed  shall 
be  correspondingly  reduced;  and,  if  the  employee  or  a  beneficiary  under 
this  Code  shall  clearly  estabhsh  that  the  injured  was  a  minor  of  such 
age  and  experience  when  injured  that  under  natural  conditions  he  would 
be  expected  to  increase  in  wage,  this  fact  may  be  considered  in  arriving  at 
his  reasonable  wage,  to  conform  to  the  spirit  of  this  Code. 

Par.  b.  The  compensation  awarded  shall  never  be  vested  except  sub- 
ject to  such  changes  as  the  provisions  of  this  Code  allow. 

3.    Mode  of  Claiming  Compensation. 

Section  13.  Employer's  Actual  Knowledge.  If  it  be  found  as  a  fact 
by  the  Board  in  its  award  that  the  employer  had  actual  knowledge  of 
the  occurrence  of  the  injury,  the  notice  provided  for  under  Section  14 
shall  not  be  essential. 

(For  Section  14,  see  Committee  Note  15.) 

Section  14.     Time  of  Notice. 

Par.  a.  Unless  the  employer  shall  have  actual  knowledge  of  the 
occurrence  of  the  injury,  or  unless  the  employee  or  some  one  on  his 
behalf,  or  some  of  the  dependants  or  some  one  on  their  behalf  or  some 
other  person,  shall  give  notice  thereof  to  the  employer  within  fourteen 
days  of  the  occurrence  of  the  injury,  then  no  compensation  shall  be 
due  until  such  notice  is  given  or  knowledge  obtained. 

Par.  b.  If  the  notice  is  given  or  the  knowledge  obtained  within  thirty 
days,  no  want,  failure,  or  inaccuracy  of  a  notice  shall  be  a  bar  to  obtain- 
ing compensation  unless  the  employer  shall  show  that  he  was  prejudiced 
by  such  want,  defect,  or  inaccuracy,  and  then  only  to  the  extent  of  such 
prejudice. 

Par.  c.  If  the  notice  is  given  or  the  knowledge  obtained  within  ninety 
days,  and  if  the  employee  or  other  beneficiary  shall  show  that  his  failure 
to  give  prior  notice  was  due  to  his  mistake,  inadvertence,  ignorance  of 
fact  or  law,  or  inability,  or  to  the  fraud,  misrepresentation,  or  deceit  of 
another  person,  or  to  any  other  reasonable  cause  or  excuse,  then  compen- 


323 

sation  may  be  allowed,  unless  and  then  to  the  extent  only  that  the  em- 
ployer shall  show  that  he  was  prejudiced  by  failure  to  receive  such 
notice. 

Par.  d.  Unless  knowledge  be  obtained  or  notice  given  within  ninety 
days  of  the  injury,  no  compensation  shall  be  allowed. 

Section  15.  Service  of  Notice.  The  notice  may  be  served  personally 
upon  the  employer,  or  upon  any  agent  of  the  employer,  upon  whom  a 
summons  may  be  served  in  a  civil  action,  or  by  sending  it  through  the 
mail  to  the  employer  at  the  last-known  residence  or  business  place  thereof 
within  the  State,  and  may  be  in  substantially  the  following  form: — 

"Notice  to  Employer  of  Personal  Injury  Received. 

You  are  hereby  notified  that  a  personal  injury  was  received  by 
(name)  ,  who  was  in  your  employ  at 

(place)  ,  at  the  job  of  (kind  of  work)  , 

on  or  about  the  day  of  19        , 

and  that  compensation  will  be  claimed  therefor. 
(Signed) 

(For  Section  16,  see  Committee  Note  16.) 

Section  16.    Joint  Medical  Examination. 

Par.  a.  After  an  injury  the  employee,  if  so  requested  by  his  employer, 
must  submit  himself  for  examination  at  some  reasonable  time  to  a  phy- 
sician selected  by  the  employer  authorized  to  practise  under  the  laws  of 
the  State. 

Par.  h.  If  the  employee  requests,  he  shall  be  entitled  to  have  a  phy- 
sician of  his  own  selection  present  at  some  reasonable  time  to  participate 
in  some  examination. 

Par.  c.  Unless  there  has  been  a  reasonable  opportunity  thereafter 
for  such  physician  selected  by  the  employee  to  participate  in  the  exam- 
ination in  the  presence  of  the  physician  selected  by  the  employer,  the 
physician  selected  by  the  employer  shall  not  be  permitted  afterwards  to 
give  evidence  of  the  condition  of  the  employee  in  a  dispute  as  to  the 
injury. 

Par.  d.  Except  as  provided  herein  in  this  Code,  there  shall  be  no 
other  disqualification  or  privilege  preventing  the  testimony  of  a  physician 
who  actually  makes  an  examination. 

Section  17.  Medical  Examination  by  Neutral  Physician.  The  Board 
of  Arbitrators  shall  have  the  power  to  employ  a  neutral  physician  of 
good  standing  and  ability,  whose  duty  it  shall  be,  at  the  expense  of  the 
county,  to  make  such  examination  or  examinations  as  the  Board  may 
request  on  its  own  behalf  or  on  the  petition  of  either  or  both  the  employer 
and  employee  or  dependants. 


324 

Section  18.  Testimony  by  Board  Physician.  If  the  employer  or  the 
employee  has  a  physician  make  such  an  examination  and  no  reasonable 
opportunity  is  given  to  the  other  party  to  have  his  physician  make  ex- 
amination, then,  in  case  of  a  dispute  as  to  the  injury,  the  physician  of  the 
party  making  such  examination  shall  not  give  evidence  before  the  Board 
unless  a  neutral  physician  of  the  Board  of  Arbitration  either  has  exam- 
ined or  then  does  examine  the  injured  employee  and  gives  testimony 
regarding  the  injuries. 

Section  19.  Refusal  of  Medical  Examination.  If  the  employee  shall 
refuse  examination  by  a  physician  selected  by  the  employer,  either  with 
or  without  the  presence  of  a  physician  of  his  own  selection,  and  shall 
refuse  an  examination  by  the  physician  of  the  Board  of  Arbitrators,  he 
shall  have  no  right  to  compensation  during  the  period  from  such  refusal 
until  he  or  some  one  on  his  behalf  notifies  the  employer  or  Board  of  Arbi- 
trators that  he  is  willing  to  have  such  examination. 

Section  19  a.  Certificate  of  Physician.  A  physician  making  an  ex- 
amination may  give  to  the  employer  and  to  the  workman  a  certificate 
as  to  the  condition  of  the  workman,  and  such  certificate  shall  be  com- 
petent evidence  of  that  condition  if  his  testimony  would  have  been 
admissible. 


4.    Legal  Effect  of  Settlements  and  Claims. 
(For  Section  20,  see  Committee  Note,  p.  20.) 

Section  20.    Settlements. 

Par.  a.  All  settlements  and  releases  made,  in  which  the  employee 
is  given  the  full  benefit  of  this  Code,  shall  be  binding  upon  all  parties, 
except  that  no  settlement  or  release  in  which  the  payments  shall  run  longer 
than  ninety  days  from  the  injury,  and  no  lump-sum  settlement  what- 
ever, shall  be  binding  upon  the  employee  unless  and  until  the  same  be 
approved  by  the  Board  of  Arbitration. 

Par.  h.  The  Board  may  at  any  time  require  from  the  employer  a 
copy  or  report  of  any  settlement  or  release  or  class  of  settlements  or 
releases  made  with  him. 

(For  Section  21,  see  Conference  Proceedings,  p.  284.) 

Section  21.  Preference  or  Lien.  The  right  of  compensation  granted 
by  this  Code  shall  have  the  same  preference  against  the  assets  of  the 
employer  as  is  allowed  by  law  for  a  claim  for  unpaid  wages  for  labor. 

Section  22.  Exempt  and  not  Assignable.  Claims  or  payments  due 
under  this  Code  shall  not  be  assignable,  and  shall  be  exempt  from  all 
claims  of  creditors  and  from  levy,  execution,  or  attachment. 


325 

5.    Board  of  Arbitration;    Jurisdiction  and  Awards. 

(For  Section  23,  see  Conference  Proceedings,  pp.  180,  295,  and 
Committee  Note  23.) 

Section  23.  Submission  to  Arbitration  as  a  Condition  Precedent  to  Claim 
for  Compensation. 

Par.  a.  As  a  condition  precedent  to  recover  upon  a  claim  for  compen- 
sation, in  case  of  a  dispute  over  or  failure  to  agree  upon  a  claim  for  com- 
pensation or  of  a  failure  or  refusal  of  the  employer  to  pay  a  claim  for 
compensation,  the  employee  or  the  dependants  or  others  entitled  to  the 
benefits  hereof,  as  the  case  may  be,  shall  submit  the  claim  for  compen- 
sation hereunder,  both  as  to  the  fact  and  nature  of  the  injuries  and  the 
amount  of  compensation  therefor,  to  a  Board  of  Arbitrators  as  herein- 
after specified,  in  substantial  compliance  with  this  Code,  and  shall  be 
and  remain  bound  by  the  award  and  such  modifications  thereof  as  shall 
be  made  under  the  provisions  of  this  Code. 

Par.  b.  If  the  employer,  or  any  other  interested  person,  appeal  in 
any  proceeding  herein  to  contest  the  merits  thereof,  or  to  get  or  accept 
or  carry  out  the  benefits  of  the  provisions  of  this  Code,  such  person 
shall  be  deemed  to  have  appeared  generally  and  joined  in  a  submission 
of  such  matter  to  the  decision  of  the  Board  and  the  conditions  of  this 
Code. 

Par.  c.  The  Board  shall  acquire  jurisdiction  of  the  employer  and  all 
other  persons  interested  in  said  proceeding  by  the  service  of  the  notice 
upon  them  according  to  Sections  30,  31,  and  32  of  this  Code,  or  by  their 
general  appearance. 

Par.  d.  When  the  Board  obtains  jurisdiction  of  any  party  or  matter, 
then  it  shall  retain  the  same  so  long  as  may  be  necessary  to  carry  out 
the  purposes  of  this  Code,  provided  that,  while  any  portion  of  said  matter 
be  before  the  District  Court  or  Supreme  Court  for  determination,  the 
jurisdiction  of  this  Board  for  that  matter  shall  be  suspended. 

Par.  e.  No  employee  or  dependant  or  other  person  interested  in  such 
compensation  shall  be  entitled  to  commence  or  maintain  any  action  at 
law  or  suit  in  equity  for  such  compensation  until  the  amount  thereof 
shall  have  been  determined  as  herein  provided,  and  then  only  for  the 
amount  so  awarded,  and  according  to  the  terms  and  conditions  of  the 
award  and  the  benefits  of  this  Code. 

(For  Section  24,  see  Committee  Note  24.) 

Section  24.    Appointment  of  Board  of  Arbitration. 

Par.  a.  There  is  hereby  created  a  Board  of  Arbitration  for  each 
county  in  this  State,  consisting  of  three  competent  members,  who  shall 
be  appointed  by  the  District  Court  for  their  respective  districts,  and 
hold  their  offices  subject  to  the  will  and  discretion  of  the  District  Court 
by  which  they  were  appointed. 


326 

Par.  b.  The  court  may,  from  time  to  time,  appoint  additional  boards 
to  act  for  such  length  of  time  as  it  deems  necessary  for  the  expeditious 
despatch  of  the  business  of  the  district. 

Section  25.     Organization  of  Board. 

Par.  a.  No  person  shall  sit  as  an  arbitrator  in  any  case  where  he 
is  related  to  either  party  by  marriage  or  blood  within  the  second  degree, 
or  who  has  any  personal  interest  in  the  matter  in  dispute:  provided, 
that  objection  to  any  arbitrator  must  be  made  in  writing  and  filed  with 
the  Board  before  hearing;  and,  if  the  matter  be  not  otherwise  disposed 
of,  it  shall  be  heard  and  determined  by  the  District  Court  on  motion, 
and  its  determination  thereof  shall  be  final. 

Par.  6.  The  court  may  fill  all  vacancies,  whether  temporary  or  per- 
manent, occurring  at  any  time  in  the  Board. 

Par.  c.  During  a  vacancy  the  remaining  two  members  shall  exercise 
all  the  power  and  authority  of  the  Board  until  such  vacancy  is  filled. 

Par.  d.  The  Board  shall  organize  by  choosing  one  of  its  members  as 
chairman. 

Par.  e.  A  majority  of  the  Board  shall  be  a  quorum  for  the  hearing  and 
decision  of  any  matter,  and  the  decision  of  any  two  thereof  shall  be  the 
decision  of  the  Board.  In  case  the  Board  shall  be  equally  divided  as 
to^any  matter,  the  same  shall  be  tried  de  novo  before  a  full  Board  of 
three  members. 

Par.  /.  The  District  Court  shall  have  the  same  power  to  punish  for 
contempt  of  the  Board  that  it  has  for  a  similar  contempt  of  its  own 
power. 

Section  26.  Clerks  and  Assistants.  The  District  Court  may  appoint 
a  clerk  of  the  Board  and  employ  experts,  and  such  other  clerical  help  as 
it  may  deem  necessary,  who  may  or  may  not  be  of  the  regular  county 
officers. 

(For  Section  27,  see  Committee  Note  27.) 

Section  27.    Salaries  and  Expenses. 

Par.  a.  All  salaries  and  expenses,  including  the  fees  of  witnesses  within 
thirty  miles,  authorized  by  this  Code,  shall  be  audited  and  paid  out  of 
the  general  funds,  the  same  as  District  Court  expenses. 

Par.  b.  The  compensation  of  the  Board  shall  be  fixed  by  the  court, 
and  shall  be  paid  in  the  same  manner  as  other  county  employees. 

Par.  c.  The  compensation  of  clerks  and  other  assistants  shall  be 
fixed  by  the  Board,  subject  to  the  approval  of  the  District  Court. 

Section  28.    Jurisdiction. 

Par.  a.  The  Board  of  Arbitration  shall  have  jurisdiction  throughout 
their  respective  counties  to  arbitrate  all  controversies  arising  within  the 
counties  and  permitted  by  or  growing  out  of  this  Code,  and  to  make 
awards  consistent  herewith. 

Par.  6,    The  Boards  shall  also  have  jurisdiction  to  arbitrate  any  such 


327 

controversies  arising  within  the  State  outside  of  their  counties,  if  all 
parties  interested  therein  shall  consent  thereto  in  writing. 

Par.  c.  Any  matter  of  arbitration  commenced  in  one  county  may  be 
transferred  to  another  county  to  be  heard  by  the  arbitrators  of  the 
County  in  which  the  injury  occurred  or  by  the  arbitrators  in  the  county 
to  which  it  is  transferred,  if  all  parties  consent  thereto  in  writing, 

(For  Section  29,  see  Committee  Note  29.) 

Section  29.    General  Powers. 

Par.  a.  The  Board,  with  approval  of  the  District  Court,  may  make 
rules  of  practice  and  procedure  not  inconsistent  with  this  Code,  but  so 
far  as  possible  uniform  throughout  the  State. 

Par.  b.  The  Board  may  fix  the  amount  of  compensation  which  any 
attorney  or  other  agent  of  an  employee  or  dependant  shall  be  entitled 
to  receive  for  services  out  of  the  sum  awarded  as  compensation. 

Par.  c.  There  is  hereby  granted  to  the  Board  of  Arbitration,  and  to 
all  the  persons  vested  herein  with  rights,  powers,  or  obhgations,  such 
further  powers  as  may  be  necessary  and  proper  to  carry  out  the  purposes 
of  this  Code  and  are  not  inconsistent  with  the  fundamental  laws. 

6.  Procedure  and  Awards  under  Arbitration. 
(For  Section  30,  see  Committee  Note  30.) 

Section  30.    Request  to  Board. 

Par.  a.  Any  person  in  interest  desiring  a  determination  by  said  Board 
of  any  necessary  matter  may  bring  it  before  the  Board  by  a  written  and 
signed  request,  filed  with  the  clerk  of  the  Board. 

Par.  b.  The  Board  of  its  own  motion  by  notice  made  and  served  as 
provided  in  Sections  31  and  32  hereof  may  bring  any  of  the  parties 
before  it  for  the  purpose  of  determining  whether  any  matter  growing 
out  of  any  such  personal  injuries  is  proceeding  according  to  the  spirit 
of  this  Code. 

Par.  c.  The  request  shall  be  in  such  form  as  may  be  prescribed  by  the 
Board,  with  the  approval  of  the  District  Court,  and  shall  furnish  so  far 
as  possible  the  data  for  service  of  notice. 

Section  31.  Notice.  Upon  the  filing  of  such  petition,  on  request, 
the  clerk  shall  issue  under  the  name  of  the  Board  a  notice  to  all  of  the 
interested  parties  so  far  as  known  to  him,  and  cause  the  same  to  be  served 
in  the  method  prescribed  in  this  Code  for  the  service  of  notice  of  injuries 
to  the  employer. 

Section  32.  Contents  of  Notice.  The  notice  shall  cover  the  following 
things: — 

(a)  The  request  made,  giving  the  name  or  names  of  the  person  or 
persons  making  the  same. 


328 

(6)  The  general  nature  of  the  matter  to  be  investigated,  sufficiently- 
describing  the  same  to  enable  the  parties  to  prepare  for  hearing. 

(c)  A  summons  to  appear  at  a  time  and  place  for  the  hearing  and  a 
notice  that  otherwise  he  will  be  awarded  in  default. 

(d)  A  notice  that  such  other  and  further  rehef  may  be  claimed  and 
awarded  as  will  do  justice  in  the  premises. 

Section  33.  Time  of  Hearing.  The  time  for  a  hearing  upon  the  merits 
of  a  claim  for  compensation  shall  not  be  less  than  ten  days,  and  upon 
other  matters  not  less  than  five  days,  after  notice  given,  unless  as  to 
such  other  matters  the  Board  shall  shorten  the  time  by  order  to  show 
cause. 

(For  Section  34,  see  Conamittee  Note  34.) 

Section  34.  Pleadings.  No  formal  or  written  pleadings  shall  be  re- 
quired in  the  hearing  of  any  controversy  arising  under  this  Code. 

Section  35.  Rules  of  Evidence.  The  Board  shall  not  be  bound  by  the 
usual  common  law  or  statutory  rules  of  evidence  or  by  any  technical  or 
formal  rules  of  procedure,  other  than  as  herein  provided;  but  may  make 
the  investigation  in  such  manner  as  in  their  judgment  is  best  calculated 
to  ascertain  the  substantial  rights  of  the  parties  and  to  carry  out  justly 
the  spirit  of  this  Code. 

Section  36.  Power  of  Inspection,  Subpoena,  and  Oath.  The  Board  shall 
have  the  power: — 

Par.  a.  To  inspect  or  cause  to  be  inspected  the  premises  where  the 
injury  occurred. 

Par.  b.  To  require  any  books  or  papers,  tools,  or  other  movable 
chattels  to  be  produced  or  inspected. 

Par.  c.  To  require  any  employee  claiming  compensation  to  be  physi- 
cally examined  by  a  physician  appointed  by  the  Board. 

Par.  d.  To  issue  subpoenas  to  compel  the  attendance  of  witnesses  or 
parties,  and  the  production  of  books,  papers,  records,  or  chattels. 

Par.  e.    To  administer  oaths. 

Section  37.     Continmince,  Rehearings,  Interim  Awards,  etc. 

Par.  a.  With  a  view  to  carrying  out  the  provisions  of  this  Code  which 
require  or  authorize  payments  to  continue  by  instalments  during  the 
period  of  disability  or  dependency,  the  Board  may  retain  jurisdiction, 
and  continue  from  time  to  time  the  proceedings  upon  any  claim,  and 
may  hold  such  interim  hearings  and  make  such  interim  awards  and 
such  modifications  of  prior  awards,  as  may  be  necessary  until  the  claim 
can  be  finally  disposed  of  by  a  final  award. 

Par.  b.  In  case  of  failure  to  serve  notice  or  to  reach  all  the  parties, 
or  in  case  it  appear  that  a  default  should  be  removed,  or  any  other  mat- 
ter done  in  the  interest  of  fairness,  the  Board  may  take  such  action 
thereon  as  will  promote  justice  and  tend  to  carry  out  the  spirit  of  this 
Code. 


329 

Section  38.  Records.  The  clerk  shall  keep  a  record  of  the  proceed- 
ings of  the  Board,  showing  separately  each  case  by  the  Board  considered, 
including  the  nature  of  the  injury,  the  names  of  the  parties  and  their 
agents  or  attorneys  if  any  appearing  therein,  the  names  of  the  witnesses 
who  testified  before  the  Board,  with  such  exhibits  as  can  reasonably  be 
kept,  or  copies  or  photographs  thereof,  furnished  by  the  parties,  and 
the  award,  and  such  other  records  as  may  from  time  to  time  be  directed 
by  the  Board. 

Section  39.  Award  to  be  Conclusive.  The  findings  and  awards  made 
hereunder  shall  be  conclusive,  unless  and  till  reopened  or  set  aside  by 
either  the  Board  or  the  court. 

Section  40.  Form  of  Award.  The  Board  shall  make  its  awards  in 
writing  in  such  terms  as  it  shall  decide  to  be  consistent  with  the  facts 
and  the  spirit  and  powers  of  this  Code  and  in  the  following  form: — 

1.  Title  of  the  claim. 

2.  We  find  in  the  above  case  that         (employee's  name) 

on  (date)  ,  received  injuries  arising  in  and  growing  out 

of  the  course  of  the  employment  of  (employer's  name) 

at  (place)  ,  while  working  at  the  job  of  (kind  of 

work)  ,  and  was  receiving  as  wages  the  sum  of  $  per  , 

payable 

3.  That  the  injuries  appear  now  to  be  and  are  as  follows: — 

4.  That  for  (temporary,  etc.)  disability  it  is  hereby 
found  and  awarded  that  the  said  employer  shall  pay  compensation  in 
the  amount  of  $                   in  all,  payable  to  the  following  persons 
(names)                during                (length  of  period) 

5.  (If  the  injuries  are  for  any  other  cause  or  convenience  requires  it), 
this  proceeding  is  hereby  adjourned  to  the  day  of  for 
further  consideration. 

6.  (Amount  of  compensation,  if  any,  allowed  to  attorney  or  other 
agent.) 

7.  (Any  further  or  different  material  matters  that  conform  to  the 
facts.) 

Section  41.  Application  for  Judgment  on  Award.  Either  party  to 
any  controversy  before  the  Board,  when  an  interim  or  final  award  is  ren- 
dered and  the  payment  thereof  has  been  refused,  may  present  a  certified 
copy  thereof  to  the  District  Court  of  the  county,  and  upon  five  days' 
notice  in  writing  to  the  other  party  apply  for  judgment  thereon. 

Section  42.  Judgment  on  Award.  The  District  Court  shall  there- 
upon render  a  judgment  in  accordance  therewith,  unless  such  award 
is  vacated  as  herein  provided.  Such  judgment  shall  have  the  same 
effect  as  though  duly  rendered  in  an  action  tried  and  determined  by  said 
court,  and  shall  with  like  effect  be  entered  and  docketed;   but  no  exe- 


330 

cution  shall  be  issued  thereon  for  more  than  is  then  due,  and  the  judg- 
ment shall  not  be  a  lien  on  realty  except  for  due  payments. 

Section  43.  Vacating  the  Award.  Any  party  aggrieved  by  any  award 
may,  within  twenty  days  after  the  filing  thereof  and  before  judgment 
thereon,  apply  to  the  District  Court  of  the  county,  upon  five  days'  notice 
to  the  other  party,  for  an  order  vacating  such  award  and  granting  a  new 
hearing;  but  such  order  may  be  made  only  on  a  showing  of  fraud  or 
gross  error  of  the  arbitrators  or  of  want  of  jurisdiction;  and  then,  if  the 
application  is  granted,  the  claim  shall  be  recommitted  for  arbitration. 

7.    Insubance. 
(For  Section  44,  see  Conference  Proceedings,  p.  192.) 

Section  44.  Insurance  Authorized.  An  employer  who  is  responsible 
for  compensation  as  provided  in  this  Code  may,  for  the  purpose  of  meet- 
ing payments,  place  the  industrial  risk  in  insurance  by  any  method  or 
methods,  otherwise  lawful,  which  may  by  him  be  selected.  But  such 
methods  of  insurance  shall  in  every  case  be  subject  to  the  following  con- 
ditions respectively  appUcable. 

(For  Section  45,  see  Committee  Note  45.) 

Section  45.  Insurance  by  Corporation  for  Profit  or  by  Mutual  Associa- 
tion. If  the  employer  is  insured  by  any  person  or  private  corporation 
doing  an  insurance  business  for  profit  or  by  any  association  or  corpora- 
tion formed  of  employers  or  employees,  or  by  employers  and  employees 
to  insure  each  other  and  operating  by  the  mutual  assessment  of  losses  or 
otherwise,  then 

Par.  a.  In  so  far  as  policies  are  issued  on  such  risks,  they  shall  pro- 
vide a  schedule  of  compensation  for  injuries  identical  with  the  schedule 
set  forth  in  Sections  4  to  13  of  this  Code  or  a  schedule  duly  approved 
pursuant  to  law  as  including  the  substantial  equivalent  to  that  of  this 
Code. 

Par.  b.  It  must  contain  a  clause  to  the  effect  that  notice  and  knowl- 
edge of  the  accident  on  the  part  of  the  employer  shall  be  deemed  notice 
and  knowledge  on  the  part  of  the  insurer;  that  jurisdiction  of  the  em- 
ployer for  arbitration  and  other  purposes  shall  be  jurisdiction  of  the 
insurer;  and  that  the  insurer  shall  in  all  things  be  bound  by,  and  subject 
to,  the  awards  rendered  against  such  employer  upon  the  risk  so  insured. 

Par.  c.  It  must  provide  that  the  employee  shall  have  an  equitable 
lien  upon  any  amount  which  shall  become  owing  on  account  of  such 
poUcy  to  the  employer  from  the  insurer,  which  amount,  in  case  of  the  legal 
incapacity  of  the  employer  to  receive  the  said  amount  and  pay  it  over 
to  the  employee  or  dependants,  will  be  by  the  said  insurer  paid  direct  to 
said  employee  or  dependants,  thereby  discharging  all  of  the  obUgations 


331 

under  the  policy  to  the  employer  and  all  of  the  obligations  of  the  em- 
ployer and  the  insurer  to  the  employee. 

Par.  d.  The  company  must  have  and  maintain  sufficient  reserve 
within  this  State  or  subject  to  the  risks  therein  to  discharge  all  the  risks 
so  insured  by  it,  and  secure  all  the  payments  as  they  become  due. 

(For  Section  46,  see  Committee  Note  46.) 

Section  46.  Self -insurance.  If  the  employer  is  insured  by  means  of 
self-insurance,  that  is,  by  an  account  representing  a  part  of  his  own 
assets  and  carrying  the  risk  or  a  specific  part  of  it  on  a  plan  for  periodical 
sums  paid  or  credited  into  the  account,  or  by  a  fund  granted  or  set  aside 
separately  by  him  in  trust  for  the  purpose,  then: — 

Par.  a.  The  compensation  schedule  of  such  insurance  accountor  fund 
may,  in  all  payments,  be  substituted  for  the  schedule  described  in  this 
Code,  provided  it  is  duly  approved  pursuant  to  law  as  substantially 
equivalent  to  that  of  this  Code  in  the  benefits  thereby  secured  to  the 
employee. 

Par.  b.  The  fact  that  the  employees,  under  such  a  plan,  contribute 
to  the  account  or  fund  either  with  or  without  other  or  greater  benefits 
or  risks,  such  as  sickness,  other  accidents,  old  age,  or  death,  shall  not 
prevent  the  plan  from  being  deemed  a  substantial  equivalent,  provided 
the  employees  in  the  other  features  of  the  plan  receive  a  proportionate 
increase  of  benefit  and  are  represented  in  the  management  of  the  account 
or  fund. 

Par.  c.  The  schedule  so  substituted  shall  be  filed  and  posted  in  a 
principal  workshop  of  the  employer. 

Par.  d.  The  account  or  fund  so  credited  shall  be  subject  to  an  equi- 
table hen,  and,  in  case  of  insolvency,  to  a  preference  claim  similar  to  that 
given  by  law  to  unpaid  wages  of  labor,  to  the  amount  of  any  compensa- 
tion claims  accrued  and  unpaid. 

(For  Section  47,  see  Committee  Note  47  and  Conference  Pro- 
ceedings, pp.  177,  192.) 

Section  47.  Transfer  of  Liability  to  Insurer.  If  the  employer  desires 
both  to  place  the  risk  in  insurance  and  to  transfer  to  the  insurer  the 
primary  liabihty  of  making  payments  to  the  employee,  he  may  do  so 
in  any  of  the  following  modes: — 

Par.  a.  He  may  cause  it  to  be  insured  by  any  private  insurance  incor- 
poration  duly  authorized  by  the  State  to  insure  the  risks  under  this 
Code. 

Par.  b.  He  may  cause  it  to  be  insured  by  any  corporation  in  the  nature 
of  a  mutual  association  of  employers  duly  authorized  by  the  State  to 
insure  the  risks  under  this  code. 

Par.  c.    He  may  cause  it  to  be  insured  by  any  corporaiion  in  the  nature 


332 

of  a  mutual  association  of  employees  duly  authorized  by  the  State  to 
insure  the  risks  under  this  code. 

Par.  d.  He  may  cause  it  to  be  insured  by  any  corporation  in  the  nature 
of  a  mutual  association  of  employers  and  employees  duly  authorized  by 
the  State  to  insure  risks  under  this  code. 

In  such  case  the  responsibility  and  duty  to  make  compensation  shall 
be  subject  to  the  conditions  of  the  following  sections: — 

(For  Section  48,  see  Committee  Note  48.) 

Section  48.  Same:  Compensation  Schedule.  Such  insuring  corpora- 
tion, association,  or  fund,  hereinafter  termed  the  insurer,  shall  provide 
a  schedule  of  compensation  for  injuries  identical  with  the  schedule  set 
forth  in  Sections  4-13  of  this  Code,  or  a  schedule  duly  approved  pur- 
suant to  law  as  including  the  substantial  equivalent  to  that  of  this  Code 
in  the  benefits  thereby  secured  to  the  employee,  and  shall  keep  and  main- 
tain sufficient  reserve  to  be  able  to  discharge  all  the  risks  so  insured  by 
it,  and  secure  all  the  payments  as  they  accrue. 

Section  49.  Same:  Contract  Recorded.  Such  insurance  of  the  lia- 
bility shall  be  made  by  a  writing,  executed  by  the  employer  and  the 
insurer,  acknowledged  in  the  manner  provided  for  deeds  of  realty,  counter- 
signed by  the  Insurance  Commissioner,  and  filed  in  his  office.  The  in- 
surer shall  therein  expressly  assume  the  liability  to  make  to  the  em- 
ployee or  other  beneficiaries  all  payments  that  may  become  due  under 
this  Code  to  such  classes  of  employees  and  their  beneficiaries  as  may  be 
therein  described,  and  the  employer  shall  expressly  assume  to  pay  the 
premiums  of  insurance  as  agreed  upon. 

A  copy  shall  also  be  posted  in  a  principal  workshop  of  the  employer. 

Section  50.  Same:  Effect  of  Contract.  Upon  the  execution,  filing, 
and  approval  of  such  writing,  the  employer's  primary  Habihty  under 
this  chapter  shall  be  deemed  to  be  suspended  as  to  him,  and  to  be  trans- 
ferred to  the  insurer,  to  the  following  extent: — 

Par.  a.  The  insurer  shall  be  the  party  primarily  liable  in  law  to  the 
employee  for  all  payments  that  may  become  due  under  this  chapter. 

Par.  h.  The  employee's  notice  of  injury  may  be  served  upon  the  em- 
ployer as  agent  for  the  insurer;  and  any  employer  failing  to  transmit  to 
the  insurer  a  copy  thereof  shall  remain  liable  for  compensation  to  the 
employee  so  giving  notice.  But  the  insurer  shall  be  served  with  all 
notices,  orders,  and  other  documents  required  by  this  Code  to  be  served 
by  the  Board  of  Arbitration  upon  the  employer. 

Par.  c.  The  insurer's  property  shall  be  subject  to  the  same  preference 
claim  described  in  Section  21  of  this  Code,  but  the  preference  claim  on 
the  employer's  property  shall  also  remain  as  provided  in  the  said  Sec- 
tion 21. 

Par.  d.  The  insurer  shall  be  the  party  competent  to  give  and  receive 
all  receipts  and  releases  and  to  do  all  other  acts  necessary  or  proper  to 


333 

settle  claims  arising  under  this  Code.  But  copies  of  such  documents 
must  on  demand  be  furnished  the  employer. 

Par.  e.  The  insurer  shall  have  a  preference  claim  on  the  employer's 
property  for  all  sums  due  as  premium  under  the  contract  of  insurance. 

Par.  /.  In  the  case  of  the  failure  of  any  insurer,  by  reason  of  lack  of 
assets,  to  make  any  payment  adjudicated  to  be  due  under  this  Code, 
the  employer's  liability  to  make  the  payments  to  the  employee  shall 
revive,  and  be  in  full  force  as  if  it  had  not  been  suspended  and  trans- 
ferred. The  employer  shall  thereafter  be  the  party  respondent  for  all 
purposes  of  notices,  payments,  orders,  and  other  acts  in  all  claims  of 
compensation  for  injuries  incurred  after  the  insurer's  failure  to  make 
payment.  The  court  shall  order  an  equitable  adjustment  of  the  assets 
of  the  insurer  for  the  discharge  of  claims  accrued  before  said  failure  to 
make  payment. 

Par.  g.  The  insurer's  property  shall  be  subject  to  the  same  preference 
claim  described  in  Section  21  of  this  Code,  but  the  preference  claim  on 
the  employer's  property  shall  also  remain  as  provided  in  the  said  Sec- 
tion 21. 


8.    Third  Persons'  Rights  and  Liabilities. 
Section  51.    Independent  Contractors. 

Par.  a.  If  the  injury  to  the  employee  was  received  on  or  in  or  about 
the  premises  on  which  a  person  has  undertaken  to  execute  work,  and  if 
such  person  has  as  principal  made  a  contract  with  an  independent  con- 
tractor or  sub-contractor,  whom  he  has  not  required  to  fully  insure  the 
risks  created  by  this  Code,  to  do  part  of  such  principal's  work,  and  if 
such  employee  was  a  person  employed  by  any  such  independent  con- 
tractor or  by  any  sub-contractor  in  any  series  of  further  sub-contracts 
covering  any  part  of  work  comprised  in  such  independent  contractor's 
contract  with  the  principal,  then  the  employee  shall,  for  the  purpose  of 
this  Code,  be  deemed  to  be  an  employee  of  such  principal.  Such  prin- 
cipal shall  be  liable  to  pay  to  any  employee  employed  in  the  execution 
of  the  work  any  compensation  under  this  Code  which  he  would  have 
been  liable  to  pay  if  that  employee  had  been  immediately  employed  by 
him. 

Par.  b.  Where  compensation  is  claimed  from  or  proceedings  taken 
against  the  principal  hereunder,  then  in  the  application  of  this  Code 
references  to  the  principal  employer  shall  be  substituted  for  references 
to  the  employer,  except  that  the  amount  of  compensation  shall  be  cal- 
culated with  reference  to  the  wage  of  the  employee  under  the  contractor 
by  whom  he  is  immediately  employed. 

Section  52.  Indemnity  to  Principal.  When  such  principal  employer 
is  liable  to  pay  such  compensation,  he  shall  be  entitled  to  be  indemnified 


334 

by  any  person  who  would  have  been  liable  to  pay  compensation  or  dam- 
ages to  the  employee  independently  of  this  and  the  preceding  section. 

Section  53.  Employee's  Right  Preserved.  Nothing  in  the  next  two 
preceding  sections  shall  be  construed  as  preventing  an  employee  from 
recovering  compensation  under  this  Code  from  the  contractor  or  sub- 
contractor instead  of  the  principal  employer. 

9.    Words  and  Phrases  Defined. 

Section  54.     Words  and  Phrases. 

Par.  a.  The  term  "employer,"  as  used  herein,  shall  include  every 
person  actually  employing  another  to  perform  a  service  such  as  comes 
within  this  Code;  and  shall  mean  any  person  or  corporation,  or  copart- 
nership, or  association,  or  group  of  persons,  associations,  or  corporations, 
and  their  successors  or  legal  representatives  after  death,  and  shall  include 
State,  County,  Village,  Town,  City,  School  District,  and  other  pubUc 
employers. 

Par.  b.  The  term  "employees"  shall  include  all  persons  employed 
to  work  in  a  dangerous  employment. 

Par.  c.  The  term  "dependant"  shall  mean  a  person  receiving  and 
using  for  necessary  support  a  part  of  the  employee's  wage  or  of  the  pro- 
ceeds obtained  by  the  employee  with  such  wage. 

10.    Time  of  Code's  Taking  Effect. 

Section  55.  Intervening  Period.  Until  this  Code  shall  take  effect, 
no  right  of  any  employee  or  dependant  to  recover  against  the  employer 
or  any  other  person  for  injuries  shall  be  in  any  way  affected  hereby; 
and  the  Code  shall  not  apply  to  injuries  incurred  before  that  date. 

Section  56.  Time  of  taking  Effect.  This  code  shall  take  effect  on  the 
first  day  of  ,  19    . 


336 


CONFERENCE   UNIFORM   DRAFT   OF   AN   EMPLOYEES' 
COMPENSATION   CODE. 

{F&rm  2:  Making  Compensation  System  Elective.) 

CONTENTS. 
Preamble. 

Chapter  I.    RIGHTS  AND  REMEDIES  DECLARED,  GRANTED, 
AND  CODIFIED. 

Chapter  II.    COMPENSATION  SYSTEM. 

L  Rights  and  Liabilities  Defined. 

2.  Amounts  of  Compensation  Allowed. 

3.  Mode  of  Claiming  Compensation. 

4.  Legal  Effect  of  Settlements  and  Claims. 

5.  Board  of  Arbitration;  Jurisdiction  and  Powers. 

6.  Procedure  and  Awards  under  Arbitration. 

7.  Insurance. 

8.  Rights  and  Liabilities  of  Third  Persons. 

9.  Words  and  Phrases  Defined. 
10.  Time  of  Code's  Taking  Effect. 

Preamble. 
(Same  Preamble  as  in  Form  1.) 

Now,    THEREFORE,     BE    IT    ENACTED    BY    THE    LEGISLATURE     OF    THE 

State  of  that: — 

Chapter  I. 

RIGHTS    AND     REMEDIES    DECLARED,     GRANTED,    AND 

CODIFIED. 

(For  Section  1,  see  Committee  Note  1,  Form  2.) 

Section  1.  Rights  and  Remedies  Codified.  An  employee,  for  an  injury 
incurred  in  the  course  of  his  employment,  shall  be  entitled  to  compensa- 
tion or  damages  as  provided  in  this  Code,  and  not  otherwise. 

(For  Section  2,  see  Committee  Note  1,  Form  2.) 

Section  2.  Right  to  Compensation  Granted.  He  shall  have  a  right  to 
compensation  in  such  amount,  on  such  conditions,  and  by  such  remedy 
as  is  now  granted  and  provided  in  Chapter  II.  of  this  Code. 


336 

(For  Section  3,  see  Committee  Note  1,  Form  2,  and  Conference 
Proceedings,  pp.  210,  234,  269.) 

Section  3.  Right  to  Damages  Confirmed  and  Amended.  He  shall  have 
and  maintain  the  same  right  to  damages  as  he  now  has  (a)  by  the  rules 
of  common  law  now  in  force  and  (b)  by  any  statutory  rule  now  in 
force:  provided  (1)  that  no  claim  of  any  employee  hereafter  arising  and 
maintainable  under  this  right  shall  be  subject  to  be  defeated  on  the 
ground  (a)  that  the  employee's  injury  was  caused  in  any  respect  by  a 
fellow-servant's  act  or  omission  or  (6)  that  the  employee  assumed  the 
risks  inherent  in  the  employment  or  those  arising  from  the  failure  of 
the  employer  to  provide  safe  premises  and  suitable  appliances;  which 
said  two  grounds  of  defence  as  hitherto  existing  are  hereby  abolished; 
and  provided  (2)  that  in  any  claim  arising  out  of  the  death  of  an  em- 
ployee the  amount  recovered  shall  not  exceed  three  thousand  dollars; 
and  provided  (3)  that  no  contract  of  an  attorney-at-law  for  any  con- 
tingent interest  in  any  recovery,  under  this  right,  shall  be  a  lien  on  the 
employee's  claim,  cause  of  action,  or  judgment,  except  only  in  such 
amount  and  on  such  terms  as  the  trial  court  shall  on  motion  and  showing 
order. 

(For  Section  4,  see  Committee  Note  4,  Form  2,  and  Conference 
Proceedings,  pp.  210,  234,  277.) 

Section  4.    Employee's  Election. 

Par.  a.  The  employee  shall  not  be  entitled  to  hold  and  exercise 
both  of  the  foregoing  rights  named  in  Section  2  and  Section  3,  but  must 
elect  which  right  he  will  exercise. 

Par.  h.  Such  election  may  be  in  writing,  signed  by  the  employee, 
and  delivered  to  the  employer  upon  entering  the  employment  or  at  any 
time  thereafter  and  before  injury. 

Par.  c.  A  failure  to  make  such  election  in  writing  shall  be  conclu- 
sively deemed  an  election  to  abandon  his  right  under  Section  3. 

(For  Section  5,  see  Committee  Note  5,  Form  2,  and  Conference 
Proceedings,  pp.  210,  234,  277.) 

Section  5.    Employer's  Election. 

Par.  a.  The  employer  shall  not  be  subject  to  Uability  under  both 
of  the  rights  accorded  to  the  employee  named  in  Section  2  and  Section  3 
above,  and  may  elect,  at  any  time  before  injury  occurred,  which  liability 
he  will  be  subjected  to. 

Par.  b.  If  the  employee  makes  election  in  writing  to  maintain  his 
right  under  either  Section  2  or  Section  3  above,  the  employer  may,  by 
himself  or  his  agent,  make  election  by  countersigning  such  writing. 

Par.  c.  If  the  employee  fails  to  make  such  election  in  writing,  the 
employer  may  notify  his  election  by  notice  posted  in  the  place  of  em- 


337 

ployment  or  printed  or  written  on  a  paper  delivered  to  the  employee, 
or  otherwise  as  shall  be  found  sufficient  by  the  court. 

Par.  d.  A  failure  to  countersign  or  to  notify,  as  above  provided, 
shall  be  conclusively  deemed  an  acceptance  of  his  liability  to  the  em- 
ployee's right  named  in  Section  2,  if  the  employee  has  so  elected. 

(For  Section  6,  see  Committee  Note  6,  Form  2.) 

Section  6.  Injuries  before  Election  Rejected.  In  case  an  injury  occurs 
after  one  of  the  parties  has  signified  his  election  to  come  under  Section 
3  above,  but  before  the  other  party  has  had  opportunity  to  reject  the 
same,  the  provisions  of  Section  2  shall  apply. 

(For  Section  7,  see  Committee  Note  7,  Form  2.) 

Section  7.  Interim  Rights  not  Affected.  Until  this  law  shall  be  in 
effect,  no  right  of  any  employee  to  recover  against  the  employer  or 
other  person  for  injuries  shall  be  in  any  way  affected;  and  this  law 
shall  not  apply  to  injuries  incurred  before  that  date. 

(For  Section  8,  see  Committee  Note  8,  Form  2.) 

Section  8.  Employee's  Representatives.  The  term  "employee,"  as  used 
in  Sections  1,  2,  3,  and  7,  above,  includes  his  legal  representatives  and 
next  of  kin  after  death,  in  so  far  as  they  may  have  or  receive  any  right 
to  damages  or  compensation  arising  out  of  the  employee's  death. 

Chapter  II. 
COMPENSATION  SYSTEM. 

Sections  1-53. 

(This  Chapter  II.  incorporates  identically  the  provisions  of  the 
other  Draft  entitled  "Form  1,"  making  Compensation  System 
Mandatory. 

The  section  numbers  remain  the  same,  being  separate  series 
for  each  of  the  two  chapters.) 


338 


NOTES.    FORM  1. 


"EMPLOYEES'    COMPENSATION   CODE." 

Note  on  Title. 

The  term  "Code"  is  used  to  mean  "system  of  law,"  to  avoid  the  consti- 
tutional objections  frequently  urged  in  States,  that  the  "title"  is  insufl5cient, 
and  covers  more  than  one  subject. 

In  Johnson  v.  Harrison,  47  Minn.  575,  the  court  sustained  the  Probate 
Code  against  such  objections,  using  this  definition: — 

"The  word  'Code'  as  now  generally  used,  and  as  obviously  used  in 
this  title,  means  'a  system  of  law,' ...  'a  systematic  and  complete  body  of 
law.'"     " 

In  a  valuable  decision  with  many  illustrations  of  what  may  be  done  in  the 
general  language  of  a  code,  the  Supreme  Court  of  Georgia,  in  Central  of  Georgia 
Ry.  Co.  v.  State,  31  S.  E.  531,  104  Ga.  831,  42  L.  R.  A.  518,  said:— 

"There  is  quite  a  difference  between  a  code  of  laws  for  a  state  and  a 
compilation  in  revised  form  of  its  statutes.  The  code  is  broader  in  its 
scope,  and  more  comprehensive  in  its  purposes.  Its  general  object  is 
to  embody  as  near  as  practicable  all  the  law  of  a  state,  from  whatever 
source  derived.  When  properly  adopted  by  the  lawmaking  power  of  a 
state,  it  has  the  same  effect  as  one  general  act  of  the  legislature  contain- 
ing all  the  provisions  embraced  in  the  volume  that  is  thus  adopted.  It 
is  more  than  evidentiary  t)f  the  law.     It  is  the  law  itself." 

Notes  on  Preamble. 

(a)  Like  the  preamble  to  the  Federal  Constitution  (8  Fed.  Stat.  An.  84), 
this  preamble  originated  with  the  committee  of  draft.  It  had  been  pointed 
out  in  the  Conference  that  the  court  may  not  examine  the  debates  before  the 
Legislature  or  before  Congress,  to  ascertain  the  meaning  of  plain  provisions, 
or  the  necessity  for  the  legislation. 

U.  S.  V.  U.  P.  Ry.  Co.,  91  U.  S.  p.  72. 

In  the  above  case  it  is  said : — 

"In  construing  an  Act  of  Congress,  we  are  not  at  hberty  to  recur  to 
the  views  of  individual  members  in  debate,  nor  to  consider  the  motives 
which  influenced  them  to  vote  for  or  against  its  passage.  The  Act  itself 
speaks  the  will  of  Congress,  and  this  is  to  be  ascertained  from  the  lan- 
guage used.  But  courts  may,  with  propriety,  in  construing  a  statute, 
recur  to  the  history  of  the  times  when  it  was  passed,  and  this  is  fre- 
quently necessary,  in  order  to  ascertain  the  reason  as  well  as  the  mean- 
ing of  particular  provisions  in  it." 

(6)  It  was  further  suggested  that  the  reports  of  commissions,  formal  appK- 
cations  and  arguments  of  other  interested  persons  and  bodies,  and  the  com- 
mon knowledge  of  the  subject  showing  the  necessity  of  the  law  are  proper 


339 

subjects  for  the  court  to  examine  to  ascertain  whether  the  conditions  war- 
ranted the  legislation  under  the  poUce  power. 
This  was  done: — 

(1)  To  show  the  necessity  for  regulating  grain  commission  merchants 
in  Minnesota. 

State  ex  rel.  Beek  v.  Wagener,  77  Mmn.  483-496. 

(2)  To  determine  the  notice  for  legislation  in  Kansas,  intended  to  regulate 
the  oil  business. 

State  ex  rel.  Coleman,  Atty.-Gen.  v.  Kelly,  70  L.  R.  A.  450. 

(3)  To  determine  the  necessity  for  the  Contract  Labor  Law,  in  the  U.  S. 
Church  of  Holy  Trinity  v.  U.  S.,  143  U.  S.  457. 

(4)  To  show  the  great  dangers  to  employees  prompting  the  Safety  AppUance 
Act  to  prevent  injuries  to  workmen. 

Johnson  v.  So.  Pac.  Ry.  Co.,  196  U.  S.  1. 

(c)  It  is  evident  from  cases  cited  under  one  of  the  sections  below  that  it 
is  for  the  legislature,  first,  to  determine  that  legislation  of  this  sort  is  necessary 
to  protect  the  general  welfare :  if  that  determination  be  based  upon  reasonable 
necessity  as  distinguished  from  arbitrary  action,  the  courts  must  uphold  the 
power. 

{d)  Preambles  are  not  without  precedent  in  the  States. 

Chapter  37,  Gen.  Laws  of  Minn.  1902. 

(e)  The  object  of  this  preamble  is  to  express  some  of  the  necessities  for  and 
the  deUberation  upon,  this  legislation.  It  is  not  meant  to  enlarge  the  powers 
or  restrict  the  limitations  of  the  Code. 

See  Jacobson  v.  Massachusetts,  197  U.  S.  22. 

In  the  above  case  the  defendant  had  been  arrested  for  refusing  to  be  vacci- 
nated pursuant  to  a  small-pox  regulation  in  the  city  of  Cambridge  based  on  a 
law  of  Massachusetts.     Among  other  things  the  court  held: — 

1.  That  resort  to  the  preamble  of  the  Federal  Constitution  could  not  be 
had  to  vitiate  the  State  statute. 

2.  That  a  State  Legislature  in  enacting  a  statute  for  police  protection  had  a 
right  to  choose  the  medical  theory  which  was  most  prevalent  and  in  accord 
with  common  behef  as  to  vaccination,  and  was  not  compelled  to  commit  a 
matter  involving  pubUc  health  and  safety  to  the  final  decision  of  a  court  or 
jury. 

3.  With  respect  to  the  preamble  it  said: — 

"Although  that  preamble  indicates  the  general  purposes  for  which 
the  people  ordained  and  established  the  Constitution,  it  has  never  been 
regarded  as  the  source  of  any  substantive  power  conferred  on  the  gov- 
ernment of  the  United  States,  or  on  any  of  its  departments." 

This  preamble  can,  and  ought  to  be,  used  by  the  courts  as  indicating  the 
actual  necessities,  general  purposes,  and  careful  preparation  for  this  legislation. 


340 

NOTES  ON  SECTION   1. 
Rights  and  Remedies  Granted  and  Amended. 

It  is  within  the  power  of  the  State  Legislature  to  modify,  declare,  or  repeal 
the  common  law.  Every  legislative  act  touching  the  common  law  has  tended 
to  one  of  these  results. 

(a)  As  illustrating  what  has  been  done  between  employers  and  employees 
with  respect  to  personal  injuries  in  the  use  of  this  power,  see  the  following 


Snead  v.  Central  of  Georgia  R.  Co.,  151  Fed.  608. 
Howard  v.  III.  Cent.  Ry.  Co.,  207  U.  S.  461. 
These  two  cases  relate  to  the  Federal  act  declared  void  because  it  covered 
"intra-state"  as  well  as  "inter-state"  commerce. 

Holden  v.  Hardy,  169  U.  S.  366. 
Smith  V.  Alabama,  124  U.  S.  465. 
Martin  v.  Pittsburg,  etc.,  R.  Co.,  203  U.  S.  284. 

In  the  last  case  the  court  had  under  consideration  the  statute  of  Penn- 
sylvania limiting  the  recovery  of  damages  by  other  persons  from  railroads 
to  the  same  rights  which  employees  had.  It  was  claimed  that  this  repealed 
much  of  the  common  law,  took  away  vested  rights,  and  was  consequently 
invahd,  but  the  court  said, — 

"Such  a  contention  in  reason  must  rest  upon  the  proposition  that  the 
State  of  Pennsylvania  was  without  power  to  legislate  on  the  subject, — 
a  proposition  which  we  have  adversely  disposed  of." 

In  the  Smith  case,  supra,  the  court  recognized  the  same  principle  in  another 
rule,  which  as  to  this  subject  is  general: — 

"There  is  no  common  law  of  the  United  States  in  the  sense  of  a  na- 
tional customary  law  distinct  from  the  common  law  of  England  as 
adopted  by  the  several  states  each  for  itself,  applied  as  its  local  law, 
and  subject  to  such  alteration  as  may  be  provided  by  its  own  statutes." 

In  Holden  v.  Hardy,  169  U.  S.  366,  the  court,  after  discussing  stock  objec- 
tions on  constitutional  questions  and  referring  to  the  historical  fact  that  the 
common  law  system  has  been  and  must  ever  continue  to  be  one  of  growth, 
that  the  Constitution  of  the  United  States  must  be  interpreted  with  that  in 
view,  said, — 

"It  is  impossible  to  suppose  that  they  will  not  continue,  and  the  law 
be  forced  to  adapt  itself  to  new  conditions  of  society,  and  particularly, 
to  the  new  relations  between  employers  and  employees,  as  they  arise." 

The  Supreme  Court  of  the  United  States  having  disposed  of  the  opposition 
to  the  theory  that  the  common  law  cannot  be  repealed,  the  States  having 
always  acted  on  the  theory  that  it  can  be  modified  or  repealed  in  any  particular 
respect,  and  the  Supreme  Court  being  committed  to  the  well  known  doc- 
trine that  as  to  this  subject  the  Federal  Government  has  no  common  law, 
but  administers  the  common  law  of  the  particular  State,  there  is  no  doubt 
of  the  power  to  repeal  such  law. 


341 

(6)  It  needs  no  argument  to  show  that  the  Legislature  may  repeal  or  modify- 
any  statute  or  any  set  of  statutes  within  the  State.  An  illustration  of  how 
States  have  by  general  enactments  imposed,  created,  and  may  create,  repeal, 
or  modify,  many  laws  under  the  title  of  "Code,"  may  be  found  from  the  cases 
cited  under  "title,"  supra,  and  particularly  in  that  from  Georgia. 

(c)  The  common  law  and  statutes  of  the  several  States  need  no  repeal  for 
subjects  outside  of  employer  and  employee.  The  Code,  as  here  drawn,  is 
intended  to  furnish  the  exclusive  rule  governing  this  class  of  cases,  and  by 
imphcation  repeals  any  other  law  on  the  subject.  To  accompUsh  this  form 
of  repeal,  however,  there  must  be,  and  we  think  there  is,  unmistakable  intent 
to  make  the  act  a  substitute  for  the  old  law  and  to  make  it  contain  all  the 
law  on  this  subject.     This  is  sufficient  to  operate  as  a  repeal. 

District  of  Columbia  v.  Mutton,  143  U.  S.  27. 
Brownell  v.  Holmes,  165  Mass.  169,  42  N.  E.  553. 
Nickel  V.  City  of  St.  Paul,  80  Minn.  415. 

Cases  cited  Vol.  26  Am.  &  Eng.  Encyc.  Law  (2d  ed.),  731-732. 

(d)  The  repeal  and  grant  being  applicable  to  all  classes  of  employment 
where  injuries  occur,  directly  in  proportion  to  the  accidents  that  do  occur  are 
within  the  police  power  and  reasonable  as  to  classification. 

H olden  v.  Hardy,  supra. 

Louisville    &  Nashville   R.  Co.   v.  Melton,   218   U.  S.   (decision 
May  31,  1910). 

This  section  is  also  intended  to  be  broad  enough  to  dispose  of  liabilities 
of  a  civil  nature  as  between  employer  and  employee  for  actions  based  upon 
violations  of  penal  statutes  now  or  hereafter  in  force.  In  short,  it  is  the 
object  to  make  this  the  exclusive  remedy  of  a  civil  nature  for  personal  injuries 
received  that  come  within  the  provisions  of  this  act,  so  far  as  the  rights  of  the 
employee  are  concerned;  but  this  would  not  prevent  the  employer  from  hav- 
ing a  right  of  action  against  a  third  party  who  had  caused  him  a  legal  wrong. 

(e)  As  the  common  law  rights  and  remedies  are  repealed,  there  ought  not 
to  remain  common  law  defences  to  Code  proceedings.  We  think  this  would 
be  clear,  but,  as  we  have  added  to  this  section  for  certainty,  we  clear  the  de- 
fences in  Section  3.  Personal  injury  self-inflicted  is  made  an  aJBBrmative  de- 
fence. 

NOTES  ON  SECTION  2. 
Dangerous  Employment  Defined. 

(a)  The  question  of  whether  an  employment  is  dangerous  to  the  extent 
that  it  needs  control  under  the  police  power  is  first  for  the  Legislature. 

In  the  case  of  Mayor,  Alderman,  et  al.  of  New  York  v.  Miln,  11  Peters, 
102,  L.  Ed.  660-662-664,  there  is  an  elaborate  opinion  on  the  pohce  power. 
In  February,  1824,  the  Legislature  of  New  York  passed  an  act  providing  that 
the  master  of  every  vessel  arriving  in  New  York  from  a  foreign  port  or  from  a 
port  of  any  of  the  States  other  than  New  York  was  required  under  certain 
penalties  within  a  certain  time  to  report  in  writing,  containing  the  names, 
ages,  and  last  local  settlement  of  every  person  who  should  have  been  on  board 


342 

the  vessel  during  the  voyage,  and  that,  if  any  of  the  passengers  should  have 
gone  on  board  any  other  vessel  and  landed  at  any  other  place  with  a  view  to 
proceed  to  New  York,  the  same  should  be  stated  in  the  report.  The  cor- 
poration of  the  city  of  New  York  instituted  an  action  under  this  law  for 
debt  against  the  master  of  the  ship  "Emily"  to  recover  the  penalties  imposed 
by  this  act,  etc.  The  defendant  demurred  to  the  declaration,  and  the  judges 
of  the  Circuit  Court,  being  divided  in  opinion  as  to  whether  or  not  this  act 
regulated  trade  and  commerce  between  New  York  and  foreign  ports  and  was 
therefore  unconstitutional  and  void,  certified  the  case  to  the  Supreme  Court 
of  the  United  States.  The  Supreme  Court  reached  the  conclusion  that  it 
was  not  a  regulation  of  commerce,  but  of  police. 

With  respect  to  the  difficulties  of  defining  the  police  power  the  court  con- 
tinues:— 

"We  choose  rather  to  plant  ourselves  on  what  we  consider  impreg- 
nable positions.  They  are  these:  that  a  state  has  the  same  undeniable 
and  unlimited  jurisdiction  over  all  persons  and  things  within  its  terri- 
torial limits  as  any  foreign  nation,  where  that  jurisdiction  is  not  sur- 
rendered or  restrained  by  the  Constitution  of  the  United  States.  That, 
by  virtue  of  this,  it  is  not  only  the  right  but  the  bounden  and  solemn 
duty  of  a  state,  to  advance  the  safety,  happiness  and  prosperity  of  its 
people,  and  to  provide  for  its  general  welfare,  by  any  and  every  act  of 
legislation  which  it  may  deem  to  be  conducive  to  these  ends;  where  the 
power  over  the  particular  subject,  or  the  manner  of  its  exercise  is  not 
surrendered  or  restrained  in  the  manner  just  stated.  That  all  those 
powers  which  relate  to  merely  municipal  legislation,  or  what  may,  per- 
haps, more  properly  be  called  internal  police,  are  not  thus  surrendered 
or  restrained;  and  that,  consequently,  in  relation  to  these,  the  authority 
of  a  state  is  complete,  unqualified  and  exclusive." 

In  Holden  v.  Hardy,  169  U.  S.  366,  the  court  said:— 

"We  have  no  disposition  to  criticise  the  many  authorities  which  hold 
that  state  statutes  restricting  the  hours  of  labor  are  unconstitutional. 
Indeed,  we  are  not  called  upon  to  express  an  opinion  upon  this  subject. 
It  is  sufficient  to  say  of  them  that  they  have  no  application  to  cases 
where  the  legislature  had  adjudged  that  a  Umitation  is  necessary  for  the 
preservation  of  the  health  of  employees,  and  there  are  reasonable  grounds 
for  believing  that  such  determination  is  supported  by  the  facts.  The 
question  in  each  case  is  whether  the  legislature  has  adopted  the  statute 
in  exercise  of  a  reasonable  discretion,  or  whether  its  action  be  a  mere 
excuse  for  an  unjust  discrimination,  or  the  oppression,  or  spoliation 
of  a  particular  class." 

In  speaking  of  the  fact  that  progress  may  be  made  under  our  Constitution 
in  the  change  of  laws  as  well  as  conditions,  it  said, — 

"Of  course,  it  is  impossible  to  forecast  the  character  or  extent  of  these 
changes,  but  in  view  of  the  fact  that,  from  the  day  Magna  Charta  was 
signed  to  the  present  moment,  amendments  to  the  structure  of  the  law 
have  been  made  with  increasing  frequency,  it  is  impossible  to  suppose 
that  they  will  not  continue,  and  the  law  be  forced  to  adapt  itseK  to  new 
conditions  of  society,  and  particularly,  to  the  new  relation  between 
employers  and  employees,  as  they  arise." 

As  to  the  basis  for  legislative  action  within  the  police  power,  it  said, — 

"These  employments  when  too  long  pursued  the  legislature  has  judged 
be  detrimental  to  the  health  of  the  employees,  and  so  long  as  there  are 


343 

reasonable  grounds  for  believing  that  this  is  so,  its  decisions  upon  this 
subject  cannot  be  reviewed  by  the  federal  courts." 

Lochner  v.  New  York,  198  U.  S.  45,  although  holding  the  particular  statute 
as  to  the  regulation  of  employer  and  employee  void  because  that  employment 
was  not  dangerous,  admits  the  rule  to  be  as  follows: — 

"If  the  contract  be  one  which  the  state,  in  the  legitimate  exercise 
of  its  police  power,  has  the  right  to  prohibit,  it  is  not  prevented  from 
prohibiting  it  by  the  14th  Amendment.  ... 

This  is  not  a  question  of  substituting  the  judgment  of  the  court  for 
that  of  the  legislature.  If  the  act  be  within  the  power  of  the  state,  it  is 
vaUd,  although  the  judgment  of  the  court  might  be  totally  opposed  to 
the  enactment  of  such  a  law.  But  the  question  would  stiU  remain:  Is 
it  within  the  poUce  power  of  the  state?  and  that  question  must  be  an- 
swered by  the  court." 

In  Muller  v.  Oregon,  208  U.  S.  412,  in  sustaining  a  law  of  Oregon  limiting 
hours  of  labor  for  women  as  being  within  the  police  power,  it  is  said: — 

"The  legislation  and  opinions  referred  to  in  the  margin  may  not  be, 
technically  speaking,  authorities,  and  in  them  is  little  or  no  discussion 
of  the  constitutional  question  presented  to  us  for  determination,  yet 
they  are  significant  of  a  wide-spread  belief  that  woman's  physical  struct- 
ure, and  the  function  she  performs  in  consequence  thereof,  justify  special 
legislation  restricting  or  qualifying  the  conditions  under  which  she  should 
be  permitted  to  toil.  Constitutional  questions,  it  is  true,  are  not  settled 
by  even  a  consensus  of  present  pubUc  opinion,  for  it  is  the  peculiar  value 
of  a  written  constitution  that  it  places  in  unchanging  form  limitations 
upon  legislative  action,  and  thus  gives  a  permanence  and  stabiUty  to 
popular  government  which  otherwise  would  be  lacking.  At  the  same 
time,  when  a  question  of  fact  is  debated  and  debatable,  and  the  extent 
to  which  a  special  constitutional  hmitation  goes  is  affected  by  the  truth 
in  respect  to  that  fact,  a  wide-spread  and  long-continued  beUef  concern- 
ing it  is  worthy  of  consideration.  We  take  judicial  cognizance  of  all 
matters  of  a  general  knowledge. 

It  is  undoubtedly  true,  as  more  than  once  declared  by  this  court,  that 
the  general  right  to  contract  in  relation  to  one's  business  is  part  of  the 
liberty  of  the  individual,  protected  by  the  14th  Amendment  to  the 
Federal  Constitution;  yet  it  is  equally  well  settled  that  this  Uberty  is 
not  absolute  and  extending  to  all  contracts,  and  that  a  state  may,  with- 
out conflicting  with  the  provisions  of  the  14th  Amendment,  restrict  in 
many  respects  the  individual's  power  of  contract." 

And  in  Knox  v.  Lee,  12  Wallace,  457,  in  speaking  again  for  that  great  court 
as  to  the  Legal  Tender  Cases,  Mr.  Justice  Strong  said, — 

"It  is  not  to  be  denied  that  acts  may  be  adapted  to  the  exercise  of 
lawful  power  and  appropriate  to  it  in  seasons  of  exigency  which  would  be 
inappropriate  at  other  times." 

(6)  In  legislating  against  the  dangers  of  an  employment  and  allowing  recov- 
ery for  injuries  on  account  thereof,  fault  is  not  necessarily  the  basis  of  the 
liability  when  the  legislature  provides  otherwise. 

See  Freund,  PoUce  Power,  Sec.  634. 

Atchison,  etc.,  Ry.  Co.  v.  Matthews,  174  U.  S.  96. 

C,  R.  I.  &  P.  Ry.  Co.  V.  Zemecke,  183  U.  S.  582. 

Jones  V.  Brim,  165  U.  S.  180. 

Article  by  John  H.  Wigmore,  entitled  "Responsibility  for  Tor- 
tious Acts,"  Harvard  Law  Review,  VII. 

PersaiUt  v.  O'ReUly,  74  N.  Y. 


344 

In  the  Zemecke  case  the  Supreme  Court  said: — 

"Our  jurisprudence  affords  examples  of  legal  liability  without  fault, 
and  the  deprivation  of  property  without  fault  being  attributable  to  its 
owner.  The  law  of  deodands  was  such  an  example.  The  personifica- 
tion of  the  ship  in  admiralty  law  is  another.  Other  examples  are 
afforded  in  the  UabiUty  of  the  husband  for  the  torts  of  the  wife — the 
HabiUty  of  a  master  for  the  acts  of  his  servants." 

In  McLean  v.  Denver  <&  Rio  Grande  R.  Co.,  203  U.  S.  39,  with  respect  to 
certain  fees  fixed  by  the  Legislature,  the  court  said: — 

"The  exercise  of  the  police  power  may  and   should  have  reference 

to  the  pecuhar  situation  and  needs  of  the  community The  law 

being  otherwise  vahd,  the  amount  of  inspection  fee  is  not  a  judicial 
question;  it  rests  with  the  legislature  to  fix  the  amount,  and  it  can  only 
present  a  valid  objection  when  it  is  shown  that  it  is  so  unreasonable  and 
disproportionate  to  the  services  rendered  as  to  attack  the  good  faith 
of  the  law." 

In  State  v.  Smith,  58  Minn.  35,  it  is  said, — 

"It  has  never  been  questioned  that  the  pohce  power  of  the  state  extends 
to  regulating  the  use  of  dangerous  machinery,  with  a  view  to  protecting, 
not  only  others,  but  those  who  are  employed  to  use  it." 

For  fuller  discussion  see  article  by  H.  V.  Mercer,  report  of  Atlantic  City 
Conference,  pages  54  to  216. 

(c)  It  is  not  necessary  that  the  police  power  be  confined  to  pubHc  or  quasi- 
pubhc  institutions  or  persons.  For  relations  otherwise  private  may  become 
public  under  public  necessity  if  the  Legislature  decides  that  the  public  needs 
protection. 

State  V.  Wagener,  77  Minn.  483. 

Harbison  v.  Knoxville  Iron  Co.,  183  U.  S.  13. 

In  the  former  of  these  cases  it  was  held  that  a  State  had  the  power  to  con- 
trol commission  merchants  engaged  in  buying  and  selling  grain  because  pubUc 
protection  necessitated  it.  In  the  Harbison  case  it  was  held  that  a  statute 
of  Tennessee  requiring  lumber  companies  to  redeem,  at  reasonable  times, 
merchandise  time  checks  paid  for  services  to  their  men,  was  justified  in  the 
interests  of  public  safety  and  within  the  pohce  power.  This  power  must  be 
exercised  in  the  ordinary  way,  and  not  by  putting  the  State  into  business  with 
a  hope  of  regulating  by  competition. 

Rippe  V.  Becker,  56  Minn.  100. 

(d)  Whether  this  definition  be  construed  only  as  such  or  as  a  classification, 
it  is  the  only  one  of  practical  use,  because : — 

1.  It  classifies  all  employments  as  dangerous  directly  and  exactly  on  their 
injury  basis. 

2.  It  covers  all  employments  and  employees  upon  the  basis  of  actual  as 
distinguished  from  supposed  dangers. 

3.  It  tends  to  prevent  hazards  in  all  employments  and  gives  all  warning 
to  protect  themselves. 

4.  It  classifies  risks  in  accordance  with  the  good  or  bad  showing  of  the  par- 
ticular employment  as  well  as  that  general  industry. 


345 

(e)  It  is  the  safest  because  there  can  be  no  question  of  constitutional  in- 
equality in  either  the  classification  of  the  employees  of  a  particular  industry 
or  between  different  industries. 

C,  M.  &  SL  P.  Ry.  Co.  v.  Weshey,  178  Fed.  619,  8  C.  C.  A. 
Louisville  &  Nashville  R.  Co.  v.  Melton,  U.  S.  Sup.  Co-op.  Adv. 
Sheets,  July  1,  1910,  p.  626  (218  U.  S.). 

(/)  "Arising  in  and  growing  out  of  the  course  of  employment"  comes  from 
the  British  act  and  has  received  much  judicial  comment.  The  injuries  may 
arise  in  the  course  of  employment  and  not  grow  out  of  such  employment, 
as  illustrated  by  an  English  decision  in  a  case  where  a  boy  was  hurt,  while 
at  work  in  his  employment,  by  a  piece  of  iron  thrown  by  another  boy  not  con- 
nected with  the  employment.  Another  case  where  the  accident  was  caused 
by  a  fellow-workman  while  they  were  engaged  in  "horse-play"  was  also  held 
not  to  "arise  out  of"  the  course  of  employment.  (See  Knowles,  Workmen 
Comp.,  pp.  16-20.)  It  does  not  arise  in  the  course  of  employment  either 
before  the  employment  has  commenced  or  after  it  has  terminated.     Id. 


NOTES  ON  SECTION  3. 
Inequality  op  Employer  and  Emmloyeb. 

(a)  The  courts  recognize  that  in  dangerous  employment  the  employer  and 
the  employee  do  not  stand  upon  equality  as  to  their  right  to  contract. 
That  is  one  of  the  fundamental  grounds  of  interference  in  such  matters  as 
this. 

In  the  case  of  Harbison  v.  KnoxvUle  Iron  Co.,  53  S.  W.  955,  the  Supreme 
Court  of  Tennessee  said: — 

"The  Legislature,  as  it  thought,  found  the  employee  at  a  disadvantage 
in  this  respect,  and  by  this  enactment  undertook  to  place  him  and  the 
employer  more  nearly  upon  an  equality.  This  alone  commends  the  act, 
and  entitled  it  to  a  place  on  the  statute  book  as  a  valid  police  regulation." 

The  Supreme  Court  of  the  United  States  approved  this  opinion  in  Knoxville 
v.  Harbison,  183  U.S.  13. 

In  respect  to  the  length  of  hours  dangerous  labor  may  be  required,  it  was 
said  by  the  Supreme  Court  of  the  United  States  in  Holden  v.  Hardy,  169 
U.  S.  366,— 

"The  Legislature  has  also  recognized  the  fact,  which  the  experience 
of  Legislatures  in  many  States  has  corroborated,  that  the  proprietors 
of  these  establishments  and  their  operatives  do  not  stand  upon  an 
equality,  but  that  their  interests  are,  to  a  certain  extent,  conflicting." 

Then  in  the  case  of  Narramore  v.  Cleveland,  etc.,  Ry.  Co.,  96  Fed.  298,  a 
case  involving  the  rights  of  railway  employees  to  have  switches  blocked,  while 
Judge  Taft  was  sitting  on  the  Circuit  Court  of  Appeals,  he  used  this  language: 

"The  only  ground  for  passing  such  a  statute  is  found  in  the  inequaHty 
of  terms  upon  which  the  railway  company  and  its  servants  deal  in  regard 
to  the  dangers  of  their  employment.  The  manifest  legislative  purpose 
was  to  protect  the  servant  by  positive  law,  because  he  had  not  pre- 
viously shown  himself  capable  of  protecting  himself  by  contract;  and  it 


346 

would  entirely  defeat  this  purpose  thus  to  permit  the  servant  'to  contract 
the  master  out'  of  the  statute." 

An  employee  cannot  successfully  say  to  a  railway  president,  "Run  your 
business  carefully  or  I  will  quit." 

The  Right  to  Sue  and  the  Finality  op  Amount  may  be  Conditional  as 
Provided  in  this  Section. 

(b)  There  is  no  more  discrimination  between  the  rights  of  the  employer 
and  the  employee  in  this  matter  than  the  situation  demands,  according  to 
the  rule  above  stated.  In  all  actions  the  party  that  is  aggrieved  has  the  burden 
of  bringing  and  substantiating  his  action.  In  cases  where  a  right  is  given 
absolutely,  the  remedy  follows  in  the  courts  as  a  matter  of  law;  but  in  cases 
where  the  right  is  settled  with,  or  conditioned  upon,  the  remedy  in  such  way 
as  to  show  that  the  right  would  not  be  given  if  it  were  not  for  the  remedy,  the 
courts  uphold  it  as  a  vaUd  condition  to  compel  parties  to  submit  their  claims 
to  arbitration  or  to  agree  that  arbitration  shall  be  a  condition  precedent  to  a 
cause  of  action.  An  arbitration  clause  is  contained  in  the  Minnesota  Stand- 
ard Fire  Policy,  as  in  many  others,  and  has  been  upheld  by  the  courts.  The 
police  power  allows  it,  even  as  a  condition  to  bringing  suit  in  a  regular  court. 
But  a  law  leaving  the  general  question  of  liabihty  to  be  determined  and  simply 
providing  a  reasonable  method  of  estimating  and  ascertaining  the  amount  of 
the  loss  as  a  condition  of  the  liability  is  unquestionably  vahd. 

Schuffer  v.  Rockford  Insurance  Co.,  77  Minn.  291. 
Viney  v.  Bignold,  L.  R.  20  Q.  B.  D.  172. 
CoUins  V.  Locke,  4  App.  Cas.  674. 
Scott  V.  Avery,  5  H.  L.  Cas.  811. 

Pres't,  etc.,  D.  &  H.  Canal  Co.  v.  Pa.  Coal  Co.,  50  N.  Y.  250. 
Wolff  V.  Liverpool  L.  &  G.  Ins.  Co.,  50  N.  J.  L.  453. 
HaU  V.  Norwalk  Fire  Ins.  Co.,  57  Conn.  105. 
Reed  v.  Washington  Ins.  Co.,  138  Mass.  572. 
Hamilton  v.  The  Liverpool  &  London  <&  Globe  Ins.  Co.,  136  U.  S. 
242,  34  L.  Ed.  419. 

In  the  Wolfif  case,  supra,  it  is  said: — 

"It  is  clear,  beyond  all  possibiUty  of  controversy,  that  the  agreement 
between  the  assured  and  the  company,  that  if  they  could  not  agree  on 
the  amount  of  the  loss,  that  the  sum  recoverable  should,  if  an  arbitra- 
tion were  requested,  be  the  amount  found  by  the  award.  Such  an 
agreement  is  both  legal  and  reasonable,  and  it  is  not  perceived  that  any 
authority  exists  which  holds  a  contrary  doctrine." 

In  Reed  v.  Washington  Ins.  Co.,  138  Mass.  572,  the  court  said, — 

"There  is  no  doubt  that  an  appraisal  of  value,  or  an  award  of  the 
amount  of  damages,  can  be  made  a  condition  precedent  to  a  right  of 
action." 

The  Supreme  Court  of  the  United  States  in  the  Hamilton  case,  supra,  said, — 

"Such  a  stipulation,  not  ousting  the  jurisdiction  of  the  courts,  but 
leaving  the  general  question  of  liabihty  to  be  judicially  determined,  and 


347 

simply  providing  a  reasonable  method  of  estimating  and  ascertaining 
the  amount  of  the  loss,  is  unquestionably  valid,  according  to  the  uniform 
current  of  authority  in  England  and  in  this  country." 

Even  Fere  Insurance  coaies  within  Police  Power. 

(c)  The  State  may  control  the  sort  of  contracts  that  are  made  for  fire  in- 
surance and,  of  course,  may  also  control  them  for  insurance  of  risks  for  men 
in  dangerous  employment,  under  the  police  power. 

Wild  Rice  L.  Co.  v.  Royal  Ins.  Co.,  99  Minn.  190. 

State  V.  Beardsley,  88  Minn.  20. 

Schrepfer  v.  Rockford  Ins.  Co.,  77  Minn.  291. 

In  State  v.  Smith,  58  Minn.  35,  the  court  said, — 

"It  has  never  been  questioned  that  the  police  power  of  the  state  ex- 
tends to  regulating  the  use  of  dangerous  machinery  with  a  view  to  pro- 
tecting, not  only  others,  but  those  who  are  employed  to  use  it." 

In  Atchison,  etc.,  Ry.  Co.  v.  Matthews,  174  U.  S.  96,  in  upholding  a  Kansas 
fire  statute  under  the  police  power,  the  court  said, — 

"But  neither  the  amendment, — broad  and  comprehensive  as  it  is, — 
nor  any  other  amendment  was  designed  to  interfere  with  the  power  of 
the  state,  sometimes  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education,  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase  the  industries  of  the  state,  de- 
velop its  resources,  and  add  to  its  wealth  and  prosperity." 

Liberty  op  Contract  not  Absolute  in  Dangerous  Employment. 

(rf)  Liberty  of  contract  is  supposed  to  be  a  property  right,  as  construed  by 
the  courts. 

In  Adair  v.  U.  S.,  208  U.  S.  161,  Mr.  Justice  Harlan  requotes  from  Lochner 
V.  New  York,  198  U.  S.  45,  as  follows:— 

"The  general  right  to  make  a  contract  in  relation  to  his  business  is 
part  of  the  liberty  of  the  individual  protected  by  the  14th  Amendment 
of  the  Federal  Constitution." 

Later  on  the  court  says: — 

"Under  that  provision  no  state  can  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law.  The  right  to  purchase  or  to 
sell  labor  is  part  of  the  liberty  protected  by  [this  Amendment,  unless 
there  are  circumstances  which  exclude  the  right." 

Adair  v.  U.  S.,  208  U.  S.  161. 

In  Gray  v.  Building  Trades  Council,  91  Minn.  171  (182),  our  court  said, — 

"A  person's  occupation  or  calling,  by  means  of  which  he  earns  a  Uveli- 
hood  and  endeavors  to  better  his  condition,  and  to  provide  for  and  sup- 
port himself  and  those  dependent  upon  him,  is  property  within  the  mean- 
ing of  the  law,  and  entitled  to  protection  as  such;  and  as  conducted  by 
the  merchant,  by  the  capitalist,  by  the  contractor  or  laborer,  is,  aside 
from  the  goods,  chattels,  money,  or  effects  employed  and  used  in  con- 
nection therewith,  property  in  every  sense  of  the  word." 


348 
But  the  Liberty  of  Employer  and  Employee  to  Contract  is  not  Ab- 

80I<UTE  WHEN  APPLIED   TO   DaNGEROUS   EMPLOYMENT. 

HoMen  v.  Hardy,  169  U.  S.  366. 
Atchison,  etc.,  Ry.  Co.  v.  Matthews,  174  U.  S,  96. 
Johnson  v.  Southern  Pacific  Ry.  Co.,  196  U.  S.  1. 
Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13. 
MvlUr  V.  Oregon,  208  U.  S.  412  (L.  Ed.  551-555). 
Chicago,  R.  I.,  etc.,  Ry.  Co.  v.  Zernecke,  183  U.  S.  582. 

In  Holden  v.  Hardy,  169  U.  S.  366,  the  court  said,— 

"This  right  of  contract,  however,  is  itseK  subject  to  certain  hmita- 
tions  which  the  state  may  lawfully  impose  in  the  exercise  of  its  poUce 
power." 

In  Atchison,  etc.,  Ry.  Co.  v.  Matthews,  174  U.  S.  96, — 

"But  neither  the  amendment,  broad  and  comprehensive  as  it  is, — 
nor  any  other  amendment,  was  designed  to  interfere  with  the  power  of 
the  state,  sometimes  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education  and  good  order  of  the 
people,  and  to  legislate  so  as  to  increase  the  industries  of  the  state,  de- 
velop its  resources,  and  add  to  its  wealth  and  prosperity." 

In  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13,  the  court  said, — 

"But  it  is  also  true  that,  inasmuch  as  the  right  to  contract  is  not  ab- 
solute in  respect  to  every  matter,  but  may  be  subjected  to  the  restraints 
demanded  by  the  safety  and  welfare  of  the  state  and  its  inhabitants,  the 
pohce  power  of  the  state  may,  within  defined  limitations,  extend  over 
corporations  outside  of  and  regardless  of  the  power  to  amend  charters." 

In  Lochner  v.  New  York,  198  U.  S.  45,  it  said, — 

"The  state,  therefore,  has  power  to  prevent  the  individual  from  mak- 
ing certain  kinds  of  contracts,  and  in  regard  to  them  the  Federal  Con- 
stitution offers  no  protection." 

Upon  this  theory  the  court  made  the  holding  in  Midler  v.  Oregon,  as  fol- 
lows:— 

"Yet,  it  is  equally  well  settled  that  this  liberty  is  not  absolute  and 
extending  to  all  contracts,  and  that  a  state  may,  without  conflicting 
with  the  provisions  of  the  Fourteenth  Amendment  restrict  in  many 
respects  the  individual's  power  of  contract." 

All  Property  held  Subject  to  Police  Power. 

(c)  The  right  of  property  is  always  held  subject  to  the  necessities  of  the 
general  welfare  and  especially  under  our  constitutional  system  based  on  the 
contract  theory. 

See  Holden  v.  Hardy,  supra. 

Indeed  in  Beer  Company  v.  Massachusetts,  97  U.  S.  25,  the  court  said: — 

"If  the  public  safety  or  the  public  morals  required  the  discontinuance 
of  any  manufacture  or  traffic  the  hand  of  the  Legislature  cannot  be 
stayed  from  providing  for  its  discontinuance  by  any  incidental  incon- 
venience which  individuals  or  corporations  may  suffer.  All  rights  are 
held  subject  to  the  police  power  of  the  state." 


349 

Interstate  Commerce  Subject  to  this  Power. 
if)  To  the  extent  that  the  general  welfare  needs  protection  within  the 
State,  it  is  at  liberty  to  act  even  on  interstate  commerce,  for  the  State's  police 
power  as  to  that  was  not  delegated  to  Congress. 

McLean  v.  Denver  &  R.  G.  R.R.  Co.,  203  U.  S.  38-47. 
Mayor,  Alderman,  et  al.  of  New  York  v.  Miln,  11  Peters,  102. 
Howard  v.  lU.  Cent.  R.R.  Co.,  207  U.  S.  463. 

The  State  may  Regulate  Employees  op  the  Public. 

{g)  Of  course,  these  constitutional  provisions  do  not  prohibit  the  State 
from  passing  a  law  which  would  allow  its  own  servants  to  collect  from  it. 
Aitkin  v.  Kansas,  191  U.  S.  206. 

(h)  Actual  fault  is  not  necessary  to  fix  a  basis  of  compensation.  See 
authorities  under  Section  2,  supra. 

(i)  The  greatest  two  curses  of  the  present  jury  system  for  this  class  of 
cases  are  the  determination  of: — 

1.  Fault  or  counter-fault. 

2.  Amount  to  be  awarded,  maintained,  or  defeated  after  expensive  liti- 
gation. 

This  law  places  the  duty,  and,  except  for  attempt  to  seK-inflict  injuries  to 
obtain  compensation,  leaves  no  question  of  fault  for  trial.  The  compensa- 
tion is  based  on  disability  and  measured  by  wage  scale, — more  simple,  cer- 
tain, quick  remedy  than  a  jury  could  give. 

(j)  The  suggestion  has  been  made  that  in  the  insurance  cases  the  pro- 
visions for  award  rest  upon  contract.  The  point  is  that  under  the  poUce 
power  the  State  may  prescribe  the  form  of  contract  and  prohibit  all  others. 
Wild  Rice  Lbr.  Co.  v.  Royal  Ins.  Co.,  99  Minn.  190. 

It  is  well  settled,  at  least  in  some  States,  that  because  of  the  police  power 
the  State  may  require  fire  insurance  companies  to  make  prescribed  forms  of 
policies  containing  clauses  for  arbitration.  It  may  prohibit  any  other  con- 
tract than  that  so  prescribed.     This  covers  the  principle. 

We  apply  it  to  dangerous  employments  under  the  poUce  power.  There 
can  be  no  doubt  of  the  right  of  the  State  to  employ  the  principle  by  requiring 
such  contracts.  The  reason  for  requiring  the  contracts  by  fire  insurance 
companies  is  the  convenience  of  all.  The  reason  for  not  requiring  them  in 
the  case  of  employer  and  employee  is,  again,  the  convenience  of  all. 

The  formal  execution  so  required  gives  no  consent,  except  to  do  business 
under  the  law.  So  here  the  formal  execution  is  unnecessary.  The  fact  that 
business  is  done  places  them  under  the  law  and  gives  as  much  consent. 

There  are  institutions  that  will  be  subject  to  this  law  which  necessarily 
employ  and  discharge  enough  men  daily  to  create  enough  expense  in  the 
formal  execution  of  policy  contracts  to  greatly  burden  the  employer  and 
seriously  decrease  the  cost  benefits  to  the  employee.    Without  reason  and 
against  economy  the  burden  should  not  be  impKDsed.     See 
State  V.  Beardsley,  88  Minn.  20. 
Scherpfer  v.  Rockford  Ins.  Co.,  77  Minn.  291. 
Article  by  H.  V.  Mercer,  Atlantic  City  Report,  p.  195. 


350 

NOTES  ON  SECTIONS  4-6. 
2.    Amounts  op  Compensation  Allowed. 

(a)  A  waiting  period  long  enough  that  the  employee  may  feel  its  effects 
and  the  employer  have  opportunity  to  investigate  has  proven  necessary  in 
other  countries  to  prevent  malingering. 

(6)  Some  have  suggested  that  a  constitutional  danger  might  follow  such 
attempt  here.  We  do  not  consider  the  objection  weighty,  but  it  can  easily 
be  avoided  by  adopting  this  simple  rule  of  allowing  compensation,  as  here 
granted.  It  does  not  go  to  the  injured  for  his  own  use,  but  is  more  liberal 
than  a  wage  scale  for  this  period  could  ordinarily  be.  Besides,  it  protects 
the  employer,  the  employee,  and  the  State  by  the  quickest  and  best  treatment. 

(c)  The  blank  in  section  (b)  should  be  filled  with  the  number  of  years  of 
the  compensation  period  as  fixed  by  Section  7. 

(d)  It  is  to  the  employer's  interest  to  provide  good  medical  attendants. 


NOTES  ON  SECTION  7. 

Compensation  on  Death. 

We  do  not  feel  that  the  Conference  vote  on  this  subject  can  be  safely  carried 
out  on  certain  points.     In  effect,  it  was  as  follows: — 

5.  Amount  and  duration  of  compensation? 

a.  Temporary  disability? 

Fifty  per  cent,  of  the  impairment  of  wages:  maximum  of  $10  per  week, 
minimum  of  $5  per  week;  or,  if  wages  less  than  $5,  then  full  wages; 
(or  66 1  per  cent,  of  wages  up  to  $7.50  of  wages  per  week,  then  50  per 
cent,  of  balance  until  compensation  amounts  to  the  maximum  of  $10 
per  week).     Payments  not  to  extend  beyond  period  of  300  weeks. 

b.  Permanent  disabihty? 
Same  as  temporary  disabihty. 

c.  Partial  permanent  disability? 

Fifty  per  cent,  of  impairment  of  wages.  Maximum  of  $10  per  week. 
Payments  not  to  extend  beyond  period  of  300  weeks. 

d.  Death? 

(1)  Total  dependants. 

If  orphans,  50  per  cent,  of  wages  of  deceased. 

If  widow  alone,  25  per  cent,  of  wages. 

Ifwidow  and  one  child,  40  per  cent,  of  wages. 

If  widow  and  two  children,  45  per  cent,  of  wages. 

If  widow  and  three  children,  50  per  cent,  of  wages. 

If  widow  and  four  children,  55  per  cent,  of  wages. 

If  widow  and  five  children  or  more,  60  per  cent,  of  wages. 

If  widow,  father  or  mother,  50  per  cent,  of  wages. 

Children  under  sixteen  years  of  age  only  to  be  included  and  only 
during  period  they  are  under  sixteen  years  of  age. 

Maximum  of  $10  per  week,  minimum  of  $5  per  week,  or,  if  full 
wages  less  than  $5,  their  full  wages;  (or,  66 1  per  cent,  of  wages  up  to 
$7.50  of  wages  per  week,  then  50  per  cent,  of  balance  until  compensa- 
tion amounts  to  $10  per  week,  maximum).  Payments  not  to  extend 
beyond  period  of  300  weeks. 

(2)  Partial  dependants? 

Fifty  per  cent,  of  the  portion  of  the  wages  contributed  by  the  de- 
ceased to  the  partial  dependants. 


351 

(1)  In  the  first  place  we  have  inserted  no  maximum  for  the  weekly  benefit 
receivable.  It  involves  an  inequality  of  treatment,  if  the  percentage  of 
wages  is  to  form  the  basis  of  compensation.  One  motion  at  the  Conference, 
which  received  a  majority  vote,  limited  the  maximum  benefit  to  $10  per  week, 
thus  undertaking  to  follow  some  of  the  European  laws.  We  have  discarded 
this  limitation  for  safety  of  the  law.  We  see  no  reason  why  this  is  not  the 
mere  equitable  as  well  as  the  safer  method.  Inheritance  of  a  cause  of  action 
for  injuries  causing  death  is  a  matter  of  State  grant.  If  granted  or  prohibited 
to  some  of  this  class,  it  ought  to  be  to  others.  We  place  this  provision  upon 
the  basis  of  the  pecuniary  value  which  the  dependant  had  in  the  fife  of  the 
deceased,  and  this  is  common  in  statutes  allowing  death  by  wrongful  act. 
We  have  therefore  named  no  limitation  for  the  maximum,  nor  have  we  em- 
bodied the  detailed  inequalities  of  percentage  based  on  the  size  of  famihes. 
The  omission  of  the  maximum  weekly  benefit  may  make  a  five-year  period 
desirable  instead  of  a  six-year  period,  as  voted. 

(2)  The  shortening  of  the  period  in  some  cases  by  the  limit  as  to  maximum 
total  amount  is  also  questionable  as  to  equality.  There  is  such  a  maximum 
in  death  cases  now  in  most  States,  it  is  true,  but  there  is  a  distinction  made 
by  some  between  hmitations  for  death  and  for  other  claims. 

The  Umit  can  be  maintained  under  this  law  if  uniform  and  fair,  but  there 
is  danger  in  first  declaring  that  the  basis  is  a  percentage  of  the  wage  and  then 
placing  a  uniform  amount  as  the  hmit.  This  would  mean  an  arbitrary  cutting 
ofif  at  a  certain  amount,  and  would  only  mean  greater  percentages  in  some 
cases  than  in  others. 

We  can  provide  perfect  equaUty  by  declaring  that  all  may  have  an  equal 
percentage  of  wages  during  disability,  not  to  exceed  an  equal  number  of 
years.  This  is  fair  to  the  employee  and  not  unfair  to  the  employer.  We 
therefore  recommend  that  the  final  clause  of  par.  b,  fixing  a  maximum 
amount,  be  omitted. 

(3)  The  Conference  voted  to  exclude  from  the  benefits  of  the  system  alien 
dependants  non-resident  in  the  United  States.  The  members  of  the  Committee 
are  agreed  that  this  is  unsound  both  in  principle  and  in  policy.  Under  the 
above  draft,  alien  dependants  non-resident  in  the  United  States  will  receive 
their  proportion. 

NOTES  ON  SECTION  10. 
Payment  in  Lump  Sum. 

Par.  o.  Payment  in  lump  sum  is  not  desired.  It  is  only  permitted  in  the 
interest  of  justice.  It  may  be  sometimes  needed  to  wind  up  a  business  to 
protect  a  mortgage  on  a  home  or  to  meet  some  other  emergency. 

Par.  b.  There  might  be  a  case  where  property  could  be  transferred  to  save 
sacrifice,  and  it  would  be  equally  good  under  the  circumstances  as  the  claim. 
Annuities  might  become  desirable.  This  section,  too,  was  intended  to  meet 
special  conditions. 


352 

NOTES  ON  SECTION   11. 
Wages  Defined. 

(o)  Too  much  refinement  of  this  definition  would  make  it  complex  and 
more  difficult  than  under  the  present  system.  If  the  wage  is  regular,  this 
is  simple. 

(6)  When  the  wage  is  not  regular,  the  basis  here  prescribed  is  equitable 
to  all  and  will  enable  a  finding  with  a  much  more  definite  basis  than  we  now 
have  for  damages  in  personal  injury  cases. 

NOTES  ON  SECTION  12. 

Conditions  Varying  Compensation. 

Par.  a.  The  matter  of  varying  compensation  so  as  to  prevent  employers 
from  discriminating  against  those  mentioned  here  has  been  a  fundamental 
deficiency  of  the  European  laws.  Some  laws  have  undertaken  to  solve  it 
by  allowing  such  persons  to  contract  themselves  out  of  the  law  in  order  to 
get  employment.  This  is  unjust  to  them,  for  they  of  all  persons  need  the 
system.  Yet  it  is  unjust  to  compel  the  employer  to  discriminate  against 
them  because  of  their  increased  dangers  or  to  pay  for  injuries  which  but  for 
such  deficiencies  would  not  create  so  much  disabiUty.  These  sub-sections 
are  beheved  to  be  just  and  fair  to  all  and  calculated  to  prevent  discrimination. 
A  man  who  has  reached  his  full  life  expectancy  or  a  cripple  would  hereafter 
not  be  employed  without  the  safeguard  of  some  such  clause. 

Par.  6.  The  apprentice  system  is  more  rarely  used  here  than  abroad, 
but  this  does  not  alter  the  fact  that  the  young  do  receive  injuries. 

Par.  c.  A  right  may  as  well  vest  with  as  without  conditions  if  the  vesting 
is  coupled  with  the  conditions. 

NOTES  ON  SECTIONS  13-15. 
3.    Mode  op  Claiming  Compensation. 

It  is  of  the  essence  of  self-protection  against  fraud  and  against  the  failure 
to  give  proper  treatment  in  honest  cases  that  reasonably  prompt  knowledge 
of  the  injury  be  had.  The  failure  to  get  evidence  quickly  is  important  where 
the  time  and  abihty  of  service  are  such  important  factors.  The  want  of 
medical  attention  in  sUght  injuries  often  causes  infection  which  an  employer's 
foresight  would  prevent,  but  which  an  employee's  indifference  might  make 
hazardous.  This  has  been  the  experience  in  European  systems.  The  sepa- 
rate paragraphs  in  Section  14  are  beUeved  to  be  in  the  interests  of  justice  to 
all.  We  are  unable  to  conceive  a  case  under  them  where  justice  cannot  be 
done  as  nearly  as  a  system  could  hope  to  accomplish. 


353 

NOTES  ON   SECTIONS   16-19  a. 
Mode  of  Claiming  Compensation, 

Probably  no  point  in  the  European  systems  has  been  the  subject  of  greater 
objections  or  more  abuse  than  the  doctor  question. 

Section  16.  (a)  The  objection  is  there  chronic  with  the  employees  that  the 
employers'  or  insurers'  physician  sometimes  abuses  the  privileges  by  urging 
a  too  quick  ending  of  disability  and  by  being  prejudiced  in  their  testimony. 
The  employer  and  the  insurer  are  equally  emphatic  that  the  employees' 
physicians  more  often  abuse  the  privilege  of  claiming  disabihty  and  giving 
evidence.  These  objections  seem  to  be  fairly  well  founded  in  some  cases, 
but  greatly  exaggerated  in  others  by  both  sides. 

(6)  The  employer  can  hire  the  physician  cheaper,  and  his  financial  motive 
is  for  good  treatment.  He  is  more  likely  to  be  in  a  position  to  get  good  phy- 
sicians and  quick  treatment.  The  employee  may  prefer  his  own  physician. 
Under  this  clause  no  great  advantage  can  be  taken.  So  long  as  the  act  is 
administered  by  human  beings,  there  will  be  extreme  cases  on  each  side. 
Neither  ought  to  be  placed  at  great  disadvantage  on  the  physician's  evidence. 

Section  19.  The  Board  and  the  parties  should  always  have  the  testimony 
of  a  neutral  physician,  if  needed,  in  the  fair  determination  of  the  case.  We 
hope  this  will  secure  the  opportunity. 

NOTES    ON    SECTIONS  20-22. 
4.  Legal  Effect  of  Settlements. 

Section  20.  The  prevention  of  overreaching  settlements  is  the  justifica- 
tion.    They  are  sometimes  made  under  the  old  system. 

Section  21.  The  claim  becomes  fixed  and  determined,  but  is  not  collecti- 
ble in  advance.  If  a  settlement  be  not  made,  it  ought  to  have  a  preference 
over  other  general  creditors  for  the  same  reasons  as  labor  claims. 

Section  22.  The  exemption  is  in  accord  with  the  object  of  exemptions  and 
the  spirit  of  this  Code. 

NOTES    ON    SECTIONS  23-43. 
Board  of  Arbitration,  Awards,  etc. 

Section  23. 

a.  See  authorities  under  Preamble  and  Sections  "I.,"  "II.,"  and  "III." 
h.  See  Standard  Form  Fire  PoUcies  of  your  State. 

c.  This  is  a  reasonable  method  of  determining  matters  based  upon  new  rights 
given  since  the  constitution. 

See  Board  of  Co.  Com.  v.  Morrison,  22  Minn.  178. 
Minor  v.  Happersett,  21  Wall.  162. 
Article  by  H.  V.  Mercer,  Atlantic  City  Conference  Report. 

d.  Irrespective  of  this,  it  is  a  reasonable  method  of  determining  claims. 

In  the  case  of  State  ex  rel.  Barber  Asphalt  Paving  Co.  v.  District  Court  of  St. 
Louis  County,  90  Minn.  457,  Duluth  had  a  charter  provision  allowing  appeals 


354 

to  be  taken  to  the  court  in  such  cases  by  the  tax-payer.    The  respective 
quotation  will  show  the  views  taken  by  the  court,  90  Minn.  461-464: — 

"We  have  no  doubt  that  the  provision  of  the  charter  requiring  the 
presentation  of  all  claims  to  the  city  council  for  adjustment  and  allow- 
ance was  an  appropriate  subject  for  charter  supervision,  and  from  that 
it  would  seem  to  follow  logically  that  it  was  also  proper  to  continue  the 
subject,  and  provide  the  manner  in  which  the  determination  of  the  city 
council  allowing  or  disallowing  a  claim  might  be  removed  to  the  district 
court  for  judicial  investigation  and  determination;  and  we  hold  without 
further  remark  that  it  was  within  the  power  of  the  framers  to  embody  in 
the  charter  the  provisions  under  consideration. 

It  is  contended  that  the  provisions  of  the  charter  are  invalid,  because 
they  do  not  constitute  due  process  of  law.  .  .  .  The  statute  is  a  very 
serviceable  one,  and  provides  an  orderly  method  of  setthng  claims  and 
demands  against  counties  without  the  necessity  of  the  formal  commence- 
ment of  an  action  in  court;  and  the  provision  allowing  the  appeal  at 
the  instance  of  tax  payers  was  intended  as  a  safeguard,  and  to  assist 
in  the  protection  of  a  public  fund 

Every  person  is  entitled  to  a  certain  remedy  in  the  law  for  the  redress 
of  all  injuries  or  wrongs  he  may  receive  in  his  person,  property,  or  char- 
acter. But  he  is  not  entitled  to  any  particular  remedy.  Due  process 
of  law  means  an  orderly  procedure  adapted  to  the  nature  of  the  case, 
in  which  the  citizen  has  an  opportunity  to  be  heard  to  defend,  enforce, 
and  protect  his  rights;  and,  where  such  opportunity  is  granted  by  law, 
the  citizen  cannot  complain  of  the  procedure  to  which  he  is  required 
to  conform.  ...  In  a  case  like  that  under  consideration,  where  a  claim 
is  made  against  a  city  or  county,  the  presentation  of  the  claim  to  the 
administrative  officers  for  their  action  is  the  initiation  of  proceedings 
to  enforce  its  payment.  By  the  presentation  claimant  adopts  that 
method  of  enforcing  his  rights.  He  is  bound  to  follow  up  his  claim,  and 
pursue  the  remedy  pointed  out  by  the  charter  or  statutes  for  its  enforce- 
ment, and  is  afforded  ample  opportunity  for  a  complete  investigation 
and  hearing  upon  the  merits  of  his  claim.  And,  though  notice  of  appeal 
is  required  to  be  served  upon  him,  he  is  apprised  by  the  law  of  the  manner 
of  taking  such  appeal;  and,  unless  he  wholly  abandons  his  claim  after 
its  allowance  by  the  city,  he  will  have  actual  knowledge  that  it  has  been 
taken.     This  answers  every  purpose,  and  is  '  due  process  of  law. '  .  .  . 

The  administrative  officers,  the  board  of  county  commissioners,  or 
the  city  council,  in  passing  upon  and  allowing  or  disallowing  the  claims, 
act  quasi  judicially. " 

In  speaking  of  a  decision  of  the  United  States  Land  Department,  in  Lamp- 
son  v.  Coffin,  102  Minn.  493-500,  our  court  said, — 

"That  was  the  only  tribunal  qualified  or  with  jurisdiction  to  deter- 
mine the  existence  of  the  facts  essential  to  the  alleged  right,  and  its  con- 
clusion therein  precludes  further  inquiry  by  the  court." 

In  Murray  v.  Hoboken,  etc.,  Co.,  18  How.  280  (L.  ed.  372),  the  Supreme 
Court  also  said, — 

"It  is  true,  also,  that  even  in  a  suit  between  private  persons  to  try 
a  question  of  private  rights,  the  action  of  an  executive  power  upon  a 
matter  committed  to  its  determination  by  the  constitutional  laws  is 
conclusive." 

e.  The  authority  for  this  may  be  found  in  the  insurance  cases  following  as 
well  as  the  foregoing  cases: — 

Wild  Rice  L.  Co.  v.  Royal  Ins.  Co.,  99  Minn.  190-193-195. 
State  V.  Beardsley,  88  Minn.  20-25. 


355 

Schuffer  v.  Rockford  Ins.  Co.,  77  Minn.  291. 

Viney  v.  Bignold,  L.  R.  20  Q.  B.  D.  172. 

Collins  V.  Locke,  4  App.  Cas.  674. 

Scott  V.  Avery,  5  H.  L.  Cas.  811. 

Pres't,  etc.,  D.  &  H.  Canal  Co.  v.  Pa.  Coal  Co.,  50  N.  Y.  250. 

Wolff  Y.  Liverpool  L.  &  G.  Ins.  Co.,  60  N.  J.  L.  453. 

/.  We  think  the  appointment  of  the  arbitrators  in  this  scheme  something 
that  should  be  left  to  the  court  because  it  is  in  aid  of  the  work  of  the  court  and 
really  a  part  of  the  judicial  department;  that  the  court  should  have  the  power 
to  appoint  and  remove  at  will  for  the  interests  and  good  of  the  service.  This, 
we  think,  is  permissible. 

In  re  Appointment  of  Reviser,  124  N.  W.  670  (Wis.). 
State  ex  rel.  v.  Fnll,  100  Minn.  499. 

g.  The  appointment  and  salaries  are  Uke  the  examiner  and  referee  under 
the  Torrens  system  in  Minnesota.  They  are  analogous  to  referees  of  one 
kind  in  the  Minnesota  statute. 

The  effect  of  the  award  is  Uke  that  of  common  law  arbitrators.  Minnesota 
allows  the  Boards  of  Trade  and  Chambers  of  Commerce  to  have  similar 
boards  of  award  with  hke  effect  as  to  actions  between  members. 

The  entry  of  judgment  may  be  as  on  a  common  law  award. 

Irrespective  of  all  these  things  and  of  all  conditions  precedent,  the  right 
is  coupled  with  a  reasonable  remedy  to  adjust  the  amount  of  the  right  and, 
if  the  injured  prefers,  to  sue  on  that  award  after  establishing  the  amount 
according  to  the  Code  that  grants  it,  then  he  may  sue  in  a  regular  court,  but 
he  gains  nothing  thereby,  and  consequently  is  deprived  of  nothing  if  he  stays 
by  the  regular  course. 

h.  The  Federal  Constitution  does  not  control  mere  forms  of  procedure  in, 
or  regulate  the  practice  of,  the  State  courts. 

In  Maxwell  v.  Dow,  176  U.  S.  581  (L.  ed.  597),  the  court  said:— 

"A  state  cannot  deprive  a  person  of  his  property  without  due  process 
of  law,  but  this  does  not  necessarily  imply  that  all  trials  in  the  state 
courts,  affecting  the  property  of  persons  must  be  by  jury.  This  require- 
ment of  the  constitution  is  met  if  the  trial  is  had  according  to  the  settled 
course  of  judicial  proceedings.  ... 

Due  process  of  law  is  process  due  according  to  the  law  of  the  land. 
This  process  in  the  states  is  regulated  by  the  law  of  the  state.  Our 
power  over  that  law  is  only  determined  whether  it  is  in  conflict  with 
the  supreme  law  of  the  land.  .  .  .  That  is  to  saj/,  with  the  constitution 
and  laws  of  the  United  States^made  in  pursuance  thereof.  .  .  or  with  any 
treaty  made  under  the  authority  of  the  United  States." 

Maxwell  v.  Dow,  176  U.  S.  581  (L.  ed.  597). 

Tn  a  recent  case,  in  speaking  of  procedure,  the  court  said: — 

"It  does  not  follow,  however,  that  a  procedure  settled  in  Enghsh  law 
at  the  time  of  the  emigration,  and  brought  to  this  country  and  practised 
by  our  ancestors,  is  an  essential  element  of  due  process  of  law.  If  that 
were  so,  the  procedure  of  the  first  half  of  the  17th  Century  would  be  fast- 
ened upon  the  American  jurisprudence  like  a  straight  jacket,  only  to 
be  unloosed  by  constitutional  amendment." 


356 

And:— 

Twining  v.  New  Jersey,  211  U.  S.  78. 

"'That  (said  Mr.  Justice  Matthews,  in  the  same  case,  p.  529)  would  be 
to  deny  every  quality  of  the  law  but  its  age,  to  render  it  incapable  of 
progress  or  improvement.'" 

Twining  v.  New  Jersey,  211  U.  S.  78. 

The  opinion  then  requotes  from  Louisville  &  Nashville  R.R.  Co.  v.  Schmidt, 
177U.  S.  230(L.  ed.):— 

"It  is  no  longer  open  to  contention  that  the  due  process  of  the  law 
clause  of  the  14th  Amendment  to  the  constitution  of  the  United  States 
does  not  control  mere  forms  of  procedure  in  the  state  courts,  or  regulate 
practice  therein." 

Further  on  in  the  opinion  it  said : — 

"Due  process  requires  that  the  court  which  assumes  to  determine 
the  rights  of  the  parties  shall  have  jurisdiction  and  that  there  shall  be 
notice  and  opportunity  for  hearing  given  the  parties  .  .  .  subject  to 
these  two  fundamental  conditions,  which  seem  to  be  universally  pre- 
scribed in  all  systems  of  law  estabhshed  by  civilized  countries,  this  court 
has,  up  to  this  time,  sustained  all  state  laws,  statutory  or  judicially  de- 
clared regulating  procedure,  evidence  and  methods  of  trial,  and  held 
them  to  be  consistent  with  due  process  of  law." 

NOTE  ON   SECTION  44. 
Insurance  Authorized. 

The  Conference  debates  show  that  the  compensation  system  provided  in 
this  Code  was  regarded  as  essentially  a  system  of  industrial  risk  compensa- 
tion on  an  insurance  basis.  Under  this  Code  the  employer  will  naturally 
insure  even  if  he  has  not  done  so  already.  The  Committee,  therefore,  were 
bound  to  recognize  this  in  drafting  suitable  provisions.  These  provisions 
aim,  in  the  first  place,  to  check  some  of  the  current  abuses  growing  out  of  the 
relations  of  the  liability  insurers  in  the  hitherto  existing  practice  in  personal 
injury  litigation,  and,  in  the  second  place,  to  facilitate  and  encourage  in  every 
way  the  proper  adjustment  of  insurance  systems  to  the  compensation  pro- 
visions of  this  Code.  The  ensuing  provisions  make  no  further  attempt  to 
control  the  methods  of  insurance. 

NOTE  ON  SECTION  45. 
Insurers  for  Profit,  etc. 

Under  the  practice  hitherto  existing  in  personal  injury  litigation  the  in- 
surer, for  profit,  and  particularly  his  claim  agents,  are  apt  to  take  a  purely 
mercenary  attitude  in  their  relation  both  to  the  injured  employee  and  to 
the  employer.  The  provisions  of  this  section  attempt  to  eUminate  some  of 
the  most  notable  of  these  abuses  by  requiring  the  insurance  policy  to  conform 
to  the  general  purpose  of  this  Code.  The  Code  cannot  be  carried  out  to  its 
best  intent  unless  the  employer  is  relieved  from  the  pressure  of  an  insurance 
contract  inimical  to  the  spirit  of  the  Code. 


357 

NOTE  ON  SECTION  46. 
Self-insurance. 

Par.  a.  The  committee  felt  it  necessary  to  make  draft  provisions,  which 
would  make  possible  an  easy  and  immediate  adoption  of  the  Code's  compen- 
sation system  by  those  enlightened  employers  who  had  already  organized 
an  industrial  insurance  system  of  their  own.  Representatives  of  such  em- 
ployments were  among  the  members  of  the  Conference,  and  were  hearty 
advocates  of  the  Code's  compensation  system.  The  example  of  such  em- 
ployers in  coming  quickly,  under  the  Code,  would  be  a  valuable  encourage- 
ment to  others.  Their  existing  systems  should  therefore  be  provided  for  as 
effectively  as  possible  in  this  Code.  The  definition  of  their  systems  in  the  first 
sentence  of  Section  47  is  beheved  by  the  Committee  to  be  adequate  for  the 
purpose. 

Par.  b.  The  only  alteration  of  the  Code  necessary  or  proper  to  enable 
such  self-insurance  systems  to  adjust  themselves  to  it  is  in  the  compensation 
schedule.  Par.  a  provides  for  this.  The  mode  of  making  payments  by 
private  settlement  can  continue  hitherto  under  the  respective  private  sys- 
tems, except,  however,  for  lump-sum  payments,  under  Section  20.  That 
section  will  require  these  private  systems  to  obtain  the  approval  of  the  Board 
of  Arbitration  for  all  lump-sum  settlements,  and  will  therefore  tend  to  com- 
pel instalment  payments.  The  committee  expressly  desires  to  produce 
this  consequence.  The  Conference  was  emphatic  and  unanimous  in  favoring 
the  instalment  payment  in  contrast  to  the  lump  sum.  The  private  systems 
should  be  altered  accordingly. 

Par.  c.  These  self-insurance  systems  commonly  include  a  contribution 
by  the  employees.  In  such  cases  two  features  are  needed.  (1)  A  propor- 
tionate increase  of  benefits  over  the  Code's  schedule.  The  Conference 
debates,  in  which  the  plan  of  requiring  employees  to  contribute  was  voted 
down  by  a  large  majority  (Proceedings,  pp.  145-174),  showed  that  most 
who  would,  in  theory,  have  favored  such  contribution  would  have  favored 
a  proportionate  increase  of  the  Code's  compensation  rates.  The  committee, 
therefore,  included  a  provision  to  that  effect.  (2)  Employee's  representa- 
tion. In  the  Conference  debates  it  was  generally  recognized  that  one  of  the 
arguments  in  favor  of  the  employees'  contribution  was  that  it  would  make 
the  employees'  representation  in  the  management  of  the  insurance  system  an 
appropriate  feature  of  it,  and  that  this  feature  would  be  valuable  as  tend- 
ing to  create  a  better  understanding  between  all  parties  and  to  induce  caution 
and  conservatism  by  the  employees'  representatives  in  the  administration 
of  the  benefits.  In  view  of  this  the  committee  deemed  it  wise  to  include 
such  in  this  section,  such  a  provision  for  employees'  representation.  This 
feature  is  already  found  in  some  of  the  self-insurance  systems. 


358 

NOTES  ON  SECTIONS  47-50. 
Transfer  of  Liability  to  the  Insurer. 

The  Conference  having  voted,  nearly  unanimously,  that  a  system  of  com- 
pulsory State  insurance  would  be  a  desirable  mode  of  covering  the  industrial 
risk,  the  committee  expected  to  insert  a  clause  to  carry  out  this  vote.  But, 
since  the  constitutional  question  is  a  serious  one  and  since  at  present  no  such 
State  insurance  exists  in  this  country  (except  in  a  partial  form  under  the 
Montana  Act  of  1909),  the  majority  of  the  committee  preferred  to  leave 
clause  for  optional  insertion  only,  so  that  it  will  be  in  no  way  an  essential  part 
of  the  section,  and  may  remain  a  dead  letter  until  such  a  system  becomes  an 
actuality  in  some  State.  In  view  of  the  Conference  vote  and  of  its  striking 
significance  the  committee  recommend  that  the  clause  be  put  forward  as 
an  educative  feature. 

By  pars,  a-e  the  transfer  of  liability  to  the  insurer  is  permitted  in  all 
cases  where  the  insurer  is  private  insurer  for  profit  or  a  mutual  associa- 
tion of  an  employer's  or  a  trust  fund.  It  thus  includes  the  insurer  who  is 
a  corporation  doing  business  for  profit.  This  is  perhaps  questionable,  because 
the  Conference  recognized  fully  in  its  debates  the  personal  and  human  inter- 
est which  the  employer  takes  in  the  employee's  efficiency  and  welfare,  over 
and  above  his  mere  liabiUty  to  pay  compensation,  and  recognized,  on  the 
contrary,  the  purely  commercial  motives,  which  are  apt  to  dominate  the  ordi- 
nary insurance  company  and  especially  its  claim  agents.  To  place  these 
claim  agents  in  direct  touch  with  the  injured  employee,  by  permitting  such 
a  company  to  assume  primary  liabiUty,  would  tend  to  perpetuate  the  mer- 
cenary and  unscrupulous  methods  now  in  vogue  in  many  places  and  to  defeat 
the  purposes  of  the  act.  The  majority  of  the  committee,  however,  decided 
to  include  such  corporations  in  this  section.  The  mutual  insurance  associa- 
tions of  employers,  however,  are  not  hkely  to  exhibit  those  abuses  in  their 
practice,  nor,  of  course,  in  the  trust  fund  of  the  employer  himself. 

The  general  purpose  of  this  and  the  ensuing  three  sections  is  to  relieve  the 
administration  of  the  system  from  the  necessity  of  having  three  parties  through- 
out every  proceeding,  which  would  virtually  be  the  case  if  the  insurer  were 
liable,  directly,  to  the  employer  only,  and  the  employer  to  the  employee. 
Such  compUcation  seems  an  unnecessary  burden.  These  provisions  will  tend 
to  encourage  the  employer  to  develop  his  insurance  system.  Moreover,  a 
specific  additional  purpose  is  to  encourage  employers  to  develop  the  system 
of  mutual  trades  insurance,  as  in  Germany  and  in  New  England  in  the  Mill 
Mutual  Association.  Since  the  industrial  risk  will  vary  widely  with  the  dif- 
ferent industries,  the  trades-insurance  mutuals  form  the  most  scientific,  prac- 
tical, and  economical  method  of  distributing  the  risk  of  a  particular  indus- 
try.    This  bill  will  help  to  develop  those  associations. 


359 


NOTES.    FORM  2.     (ELECTIVE  FORM.) 

NOTE  ON  SECTION  1. 
Rights  and  Remedies  Codified. 

A  disadvantage  experienced  under  the  original  English  acts  was  the  diffi- 
culty and  confusion  caused  by  a  new  statute,  which  merely  amended  a  few 
rules  and  left  to  the  courts  to  announce  after  a  long  interval  the  precise  rela- 
tions of  the  new  law  to  the  old  law.  To  avoid  this  disadvantage  as  far  as 
possible,  the  committee  adopted  the  plan  of  restating  at  the  outset  of  this 
statute  the  entire  legal  situation.  This  statute  confirms  and  amends  existing 
rights  and  adds  new  rights,  but  the  complete  view  of  its  effect  may  be  got  by 
perusing  the  first  few  sections  and  observing  what  existing  rights  are  con- 
firmed by  reference.  The  first  section  declares  therefore  that  the  whole  legal 
situation  is  hereafter  to  be  ascertainable  from  the  ensuing  sections  of  the 
Code. 

NOTE  ON  SECTION  2. 
Right  of  Compensation  Granted. 

The  first  care  of  the  statute  should  be  to  grant  the  new  right  of  compen- 
sation. It  is  a  new  right,  because  it  is  based  on  the  principle  of  industrial 
risk,  and  not  on  that  of  tortious  fault,  and  it  is  a  grant  because  it  is  something 
given  by  the  Legislature,  additionally,  to  existing  rights.  This  grant  is 
named  first  in  order  to  emphasize  that  it  exists  and  is  vested  in  the  employee, 
along  with  his  other  existing  rights,  before  he  is  called  upon  to  make  any  elec- 
tion. In  other  words,  he  is  not  offered  one  thing  after  he  has  given  up  another 
thing,  but  is  given  something  positively  and  absolutely;  and  only  after  he 
is  in  possession  of  the  new  thing  need  he  elect  which  one  he  will  keep.  This 
is  important  from  the  constitutional  point  of  view. 

NOTE  ON  SECTION  3. 
Right  of  Damages  Confirmed  and  Amended. 

After  granting  the  employee  the  new  right,  the  Legislature  expressly  con- 
firms his  hitherto  existing  rights.  He  is  now  in  possession  of  both.  But  at 
the  same  time  the  hitherto  existing  rights  are  amended.  These  amendments 
carry  out  the  votes  of  the  Conference.  After  debating  the  constitutional 
questions,  the  Conference  voted  that  the  committee,  in  preparing  an  elective 
statute,  should,  nevertheless,  so  amend  the  common  law  damages  right 
within  permissible  limits  as  to  remove  some  of  the  burdens,  intricacies,  and 
abuses  of  litigation,  and  at  the  same  time  make  the  compensation  system 
(Chapter  II.)  relatively  more  attractive  for  both  employer  and  employee 
to  elect  for  the  future.  These  three  amendments  were  (1)  the  aboUtion  of 
a  part  of  the  employer's  defences;  (2)  the  reduction  of  the  maximum  amounts 
recoverable  by  the  employee;  and  (3)  the  judicial  control  of  speculative  liti- 
gation in  the  interest  of  both  parties. 


360 

Par.  (1).  The  defences  herein  abolished  by  proviso  (1)  are  two, — the  fel- 
low-servant rule  and  the  rule  for  assumption  of  risk;  i.e.,  two  out  of  the  four 
essential  limitations  to  the  employee's  right.  The  other  two  are  left  untouched ; 
namely,  employee's  contributory  negligence  as  a  defence  and  employer's 
fault  as  a  part  of  the  affirmative  case  of  the  employee.  The  Conference  did 
not  expressly  instruct  the  committee  how  many  or  which  of  these  four  should 
be  aboUshed.  But  the  committee  believed  that  two  of  the  four  would  be 
a  fair  amount.  And  the  committee  selected  the  above  two  for  the  following 
reasons:  first,  these  two  seemed  free  from  all  constitutional  objection  (see 
Professor  WilUston's  opinion,  Appendix  A);  secondly,  these  are  the  two 
which  have  been  most  criticised  as  judicial  legislation,  creating  discrimina- 
tions against  an  employee  as  such:  in  other  words,  with  these  two  abohshed, 
the  employee  is  placed  in  precisely  the  same  status,  in  personal  injury  liti- 
gation, as  a  person  not  employed;  for  the  remaining  two  elements — namely, 
plaintiff's  contributory  negligence  and  defendant's  negligence  or  wilfulness — 
are  identical  with  those  which  apply  to  all  personal  injury  htigation,  and  thus 
the  removal  of  the  above  two  defences  merely  puts  the  employee  on  the  same 
footing  as  any  other  plaintiff. 

(a)  As  to  the  wording  of  the  fellow-servant  amendment,  no  particular 
difficulty  seems  to  attend  the  wording. 

(b)  As  to  the  assumption  of  risk,  the  committee  had  some  hesitation  and 
difference  of  opinion  as  to  the  wording.  The  terms  here  chosen  are  desired 
to  make  plain  that  the  statute  does  not  aim  to  aboUsh  the  element  of  employ- 
er's fault  as  the  basis  of  an  employee's  personal  injury  claim.  That  much 
he  must  prove,  as  hitherto,  but,  having  proved  it,  he  is  not  hereafter  to  be  de- 
feated by  the  plea  that  he  has  been  entering  or  continuing  in  the  employment, 
and  assumed  the  risk  of  being  injured  by  that  fault  of  the  employer.  Practi- 
cally, such  fault  (of  which  the  risk  might  have  been  deemed  to  be  assumed) 
is  coextensive  with  a  failure  of  the  employer  to  provide  safe  and  suitable  pre- 
mises or  apphances.  The  assumption  to  be  negatived  may  therefore  be  ex- 
pUcitly  stated  in  those  terms.  Furthermore,  of  course,  the  assumption  of 
risks  inherent  in  the  employment  (and  therefore  not  due  to  employer's  fault) 
is  for  safety's  sake,  also  negatived,  although  such  a  danger  could  not  of  itself 
have  made  the  employer  liable.  It  is  believed  that  the  phrasing,  as  a  whole, 
will  make  unmistakable  (so  far  as  possible  in  a  short  statute)  the  precise 
extent  of  the  rules  intended  to  be  abolished,  and  will  thus  reduce  to  a  minimum 
the  necessity  for  judicial  interpretation  of  the  clause.  An  accurate  summary 
of  the  mass  of  detailed  decisions  applying  those  rules  is  of  course  impracti- 
cable in  a  statute. 

Par.  (2).  The  decrease  in  the  maximum  amount  of  damages  serves  as 
the  corresponding  feature  intended  to  make  the  compensation  system  more 
attractive  to  the  employee,  to  elect  the  present  personal  injury  htigation  with 
its  deplorable  uncertainties  of  strife.  The  amendment  was  restricted  to 
death  claims,  because  the  committee  find  that  in  one  or  more  States  it  might 
be  unconstitutional  to  limit  the  maximum  value  recoverable  by  a  living 
person.  Causes  of  action  arising  out  of  death  are  wholly  the  creation  of 
statutes  within  the  past  seventy  years,  and  hence  are  unquestionably  within 
legislative  control.  Moreover,  no  objection  based  on  class  legislation  {i.e., 
different  maximum  for  an  employee's  death  from  the  maximum  for  other 


361 

deaths)  need  be  apprehended,  because  several  States  have  long 

statutes  fixing  different  maxima  for  miners  and    other    classes;    and    the 

original  statutes  in  some  States  were  restricted  to  railroads. 

Par.  (3).  The  judicial  sanction  of  attorney's  Hens  for  contingent  fees 
(Proviso  3)  is  a  measure  universally  demanded,  to  alleviate  some  of  the  extor- 
tions practised  on  employers.  The  Conference  expressly  voted  to  provide 
for  this. 

NOTE  ON  SECTION  4. 
Employee's  Election. 

The  Conference  voted  that  the  committee  should  prepare  one  draft  giving 
to  the  employee  an  election  of  rights,  and  not  making  the  compensation 
system  mandatory.  This  was  to  meet  the  views  of  those  who  would  hesi- 
tate to  raise  here  a  constitutional  question  by  mandatory  substitution  of  the 
compensation  system.  The  committee  point  out  that  the  election  is  not 
called  for  until  after  the  employee  is  in  possession  of  both  his  old  and  his  new 
rights.     This  avoids  all  constitutional  doubts. 

The  mode  of  making  election  is  intended  to  be  made  as  simple  as  pos- 
sible, consistently  with  certainty  in  ascertaining  the  parties'  status.  The 
presumption  in  favor  of  an  election  of  the  compensation  system  was  the  plain 
implication  from  the  Conference  debates. 

The  time  of  election  must  be  before  injury  received.  This  differs  from  the 
drafts  hitherto  prepared  by  other  Commissions,  which  have  proposed  leaving 
the  time  of  election  until  after  injury  received.  Such  also  has  been  the  view 
of  some  representatives  of  labor,  both  within  and  without  the  Conference. 
But  the  committee  emphatically  prefer  the  provision  as  drafted;  and  for 
two  vital  reasons,  expressed  in  the  Conference  debates.  First,  an  election 
not  made  till  after  injury  received  leaves  in  full  sway  the  whole  nauseous 
system  of  an  ambulance-chasing,  speculative,  htigious,  gambhng,  and  un- 
scrupulous claim  agents,  merely  injecting  another  element  to  the  gamble; 
and  the  Conference  unanimously  reprehended  that  system.  Secondly,  the 
intelligent  and  well-meaning  employer,  who  would  naturally  desire  to  insure 
his  industry  against  the  added  burdens  of  the  new  compensation  unless  he 
knows  beforehand  the  extent  of  that  burden,  cannot  insure  intelhgently  and 
economically.  He  is  liable  to  be  operating  under  the  new  system  without 
being  relieved  from  the  strife  and  expense  of  the  old  system.  It  is  fair  and 
necessary  that  the  status  of  employees  and  employer  should  be  capable  of 
ascertainment  as  the  industry  now  stands  on  the  whole  at  a  given  time, 
without  waiting  until  specific  injuries  from  time  to  time  occur  and  numerous 
and  casual  specific  elections  fix  the  status  of  individual  employees.  The 
enlightened  interests  of  all  parties,  therefore,  require  that  the  election  should 
be  made  before  injury  received. 


362 

NOTE  ON  SECTION  5. 
Employer's  Election. 

Some  members  of  the  Conference  expressed  the  belief  that  an  election  by 
the  employer  need  not,  as  a  constitutional  question,  be  provided  for.  By 
those  who  accept  that  view  this  section  may  be  omitted.  For  this  reason 
the  committee  were  careful  to  make  this  section  quite  separable  from  the 
remainder  of  this  chapter,  so  that  its  omission  will  affect  no  other  provision. 
In  this  respect  the  committee  felt  obliged  to  avoid  following  one  or  two 
drafts  by  other  Commissions,  in  which  the  provisions  for  employer's  and 
employee's  election  were  so  mingled  that  the  omission  of  the  provision  for 
employer's  election  (by  those  who  so  desired)  would  have  required  a  re- 
drafting, and  thus  might  endanger  the  consistency  of  the  remainder  pro- 
visions. 

The  employer's  election,  like  the  employee's,  is  presumed  to  be  in  favor 
of  the  compensation  system,  if  he  does  not  expUcitly  elect  the  other  system. 
His  mode  of  expUcit  election  is  made  as  simple  and  practical  as  possible. 


NOTE  ON  SECTION  6. 
Injuries  before  Electton  Rejected. 

This  section  aims  to  provide  for  cases — probably  not  uncommon  on  rail- 
roads— where  an  interval  of  time  may  elapse  between  the  employee's  elec- 
tion and  the  employer's  receipt  of  it,  and  where  therefore  an  injury  may  be 
incurred  in  the  interval. 


NOTE  ON  SECTION  8. 
Time  of  Taking  Effect. 

This  section  prevents  the  Code  from  applying  to  any  injuries  and  causes 
of  action  existing  before  the  time  of  the  Code's  taking  effect.  The  language 
is  broad  enough  to  save  any  other  possible  consequences  not  intended  by 
the  Legislature. 


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